
    Carson v. Foley.
    A conveyance merely voluntary, is not fraudulent per se, as to existing creditors.
    The want of consideration may be a badge of fraud; but it is only presumptive, and not conclusive evidence of it; apd may be met and rebutted on the'other side.
    ■Where in a cause in chancery, the complainant sought to enjoin the respondents from selling certain real estate under execution, alleging that he owned the same by conveyance from one of the respondents, and the respondents admitted the conveyance, but alleged that the land was a gift to the wife of complainant, and there was no consideration for the same, which was denied by the complainant; and where, upon the trial of the cause, the complainant offered the said conveyance in evidence, and there was no evidence showing that the land was a gift, or that the deed was made without consideration, and thereupon the respondents were perpetually enjoined from selling the land on the execution; ReId, 1. That the deed to the complainant was sufficient prima facie evidence of his title, and of a good consideration ; 2. That the complainant having produced a prima facie good title in himself, the burden of proof was on the respondents, to avoid the deed, by showing the want of consideration; 3. That the respondents having failed to furnish sueh proof; they were properly enjoined.
    
      Appeal from the Dubuque District Court.
    
    Ik September, 1847, Jobn Foley and wife conveyed to Carson, tbe complainant, tbe quarter section of land in controversy. In October, 1849, Harrington recovered a judgment against Foley, and in October, 1850, an execution was issued tbereon, and levied upon said land, and tbe same was advertised for sale as Foley's property. Thereupon, Carson brought this suit to enjoin tbe sheriff, Harrington, and Foley, from selling tbe land, or from interfering in any way with bis right or possession thereto, averring - in bis bill that be owned tbe same by conveyance from Foley; that Foley bad no title or interest in tbe land; and tbat suck levy and advertisement threw a cloud over bis title, and affected tbe value of bis property. To tbis, Foley answers, admitting tbe conveyance, but says it was a gift to tbe wife of Carson, who was bis daughter; tbat be received no consideration; and tbat at tbe time be was in debt, but supposed be bad sufficient to pay bis creditors. Harrington also answers, but it contains nothing material to be noticed, except tbat bis debt was contracted before tbe conveyance to Carson, which is not denied or controverted. Tbe other defendant, tbe sheriff of tbe county, makes a mere formal answer, reciting tbat be was acting under tbe execution, and submits to tbe order of tbe court in tbe premises. Tbe complainant replies, denying all tbe new matter in Foley’s answer, and averring there was a good and sufficient consideration for tbe conveyance to him. Tbe case was beard on tbe pleadings and depositions, and a decree entered perpetually enjoining defendants from levying upon and selling tbe land on tbis execution. From tbis decree, tbe defendants appeal.
    /Smith, MHinlay & Poor, for tbe appellants.
    
      Hempstead & Burt, for tbe appellee.
   Wright, C. J.

Tbe record presents no sufficient reason for disturbing tbis decree. Did tbe correctness of tbe decree depend alone, upon tbe question whether there was or was not a valuable consideration, for tbe conveyance of Carson, we should not be inclined to disturb it. Carson avers in bis bill and replication, tbat be paid a valuable consideration; tbis Foley denies, and avers it was a gift. No testimony is taken by defendants, and there is no proof anywhere to sustain tbis allegation in tbe answer. On tbe contrary, tbe deed, which is made an exhibit, and which is admitted, imports tbe consideration of one hundred and eighty-six dollars. Tbe testimony shows, tbat Carson has lived upon tbe land for a number of years, both before and after its entry ; has made valuable improvements thereon; tbat be bad done work from time to time for Eoley, before tbe conveyance ; that Eoley bad spoken of it as Carson’s land, and was present wben Carson staked out tbe claim, before it was entered; that it was bought at tbe land sales in tbe name of one Langwortby, as Carson’s claim or land, and at tbe same time that Eoley’s land was bought by the same person; and that Eangworthy deeded all tbe land to Eoley by arrangement between tbe parties, and with tbe understanding between them, that Eoley could deed to Carson bis portion, which be afterwards did. Wben tbe complainant introduced bis deed, it was sufficient prima facie evidence of bis title, and óf a good consideration. Tbe burden of proof was then thrown upon tbe defendants, to impeach it. They bad averred that tbe land was conveyed as a gift to Carson’s wife, and then, by connecting tbis, with proof of indebtedness on tbe part of Eoley, at that time, it Avas proposed to subject tbe land to execution. Tbis part of tbe answer is entirely unsustained. And tbe defendants having volunteered to levy upon tbe land, and Carson having produced a prima facie good title in himself, tbe burden of proof was on them to avoid it; otherwise, they were properly enjoined. Briggs v. French, 3 Sumner, C. C. 251. We might, therefore, Without going any further, be clearly sustained in affirming this decree. But it is claimed, that Eoley was in debt at tbe time of tbe conveyance to Carson, and that it being voluntary, it Avas, therefore, fraudulent as against creditors. In other words, Ave understand it to be claimed, that if the conveyance Avas voluntary, it was fraudulent and void, per se, as against existing creditors, of Avhom Harrington was one; and, therefore, the land was subject to tbe writ. We do not think tbis tbe law, and therefore, independent of tbe proof as to the consideration, and granting it to have been a voluntary conveyance, Ave should not disturb tbe decree. We are aware that tbe rule Avas laid down to tbe extent claimed by defendant’s counsel, by Chancellor Kent, in tbe case of Reade v. Livingston, 3 Johns. Ch. 500; and that tbis is sustained, by other a 1.horiti.es entitled to much Aveight. But we understand tbe current of decisions, not only in tbis country, but in England, to be the other way. And Justice Story, after referring to this case in 3 Johns., and also to the several important cases in the English courts and in this country, involving the question, concludes his review, by saying, that “ if the question were now entirely free from the bearing of dicta and opinions in earlier times, there is much reason to believe, that it would settle down into the proposition (certainly most conformable to the language of the statute of 13 Eliz.), that mere indebtment would not per se establish, that a voluntary conveyance was void, even as to existing creditors, unless the other circumstances of the case, justly created a presumption of fraud, actual or constructive, from the condition, state, and rank of the parties, and the direct tendency of the conveyance to impair the rights of creditors.” Eq. Jurisp. § 365. And in the case of Gale v. Williamson, 8 Mees. & Welsh. 405, it is held, that a voluntary deed, made in consideration of- love and affection, is not necessarily void as against creditors of the grantor, either at common law. or the statute of Eliz., but that it must be shown from the actual circumstances, that the deed was fraudulent, and necessarily tended to delay or defeat creditors. In this position we are also sustained, by repeated decisions of the Supreme Court of the United States, and of several state courts. Hinde’s Lessee v. Longworth, 11 Wheat. 199; Salmon v. Bennett, 1 Conn. 525; Verplank v. Sterry, 12 John. 536; Jackson v. Town, 4 Cow. 604; Wickes v. Clarke, 8 Paige, 161; Sexton v. Wheaton, 8 Wheaton, 229; 5 Ohio, 71; 1 McLean, 116; 4 Vermont, 389; 1 American Leading Cases, 67. The rule which commends itself to our minds, as the most reasonable and best-sustained by the authorities, is, that expressed in 11 Whea-ton, above cited: “ The want of consideration may be a badge of'fraud; but it is only presumptive, and not conclusive, evidence of it, and may be met and rebutted on the other side.” In this case, granting the conveyance to have been voluntary, we see no circumstances justly creating a presumption of fraud, actual or constructive. At the time of the conveyance, it is admitted that Eoley had some five hundred acres of valuable lauds: he says he was iu debt, but how much, there is no effort to show; on the contrary, he says himself in his answer, that he, at the time of the conveyance, supposed that he had property sufficient to pay all his debts, without said tract, and still leave him with a good place. And this is the sum and substance of the showing of his indebtedness.

Without referring further to the other positions assumed by complainant’s counsel, in support of the decree, we conclude it must be affirmed, for the reasons already stated.  