stands,1 and a bona fide purchaser from the transferee acquires a perfect title. Neither is the transaction necessarily void in toto, but only to the extent to which the defrauded party may see fit to attack it." § 947. Sales to defeat creditors usually valid between the parties. These statutes being thus designed for the protection of creditors only, and operating to render the sale voidable at their election and not absolutely void for all purposes, it follows that such sales, when executed, are entirely operative as between the parties themselves and their personal representatives, and neither party will be permitted to escape from the consequences of the contract by the fact that one or both of them intended to thereby defeat the seller's creditors. Where, however, they remain wholly or in part executory, the rule is not so clear. Many of the cases treat even the executory contract as valid and enforceable between the parties, permitting, for example, the enforcement of a promissory note given for the purchase price or the direct collection of the purchase price itself. Other cases treat the executory contract as invalid, and, 1 See post, § 947. 2 See ante, § 150. 3 Kearney v. Vaughan, supra. 4 Hendricks v. Mount (1820), 2 South. (N. J.) 738, 8 Am. Dec. 623; Burgett v. Burgett (1824), 1 Ohio, 469, 13 Am. Dec. 634; Mackie v. Cairns (1825), 5 Cow. (N. Y.) 547, 15 Am. Dec. 477; Hudnal v. Wilder (1827), 4 McCord (S. C.), 294, 17 Am. Dec. 744; McGee v. Campbell (1838), 7 Watts (Pa.), 545, 32 Am. Dec. 783; Nichols v. Patten (1841), 18 Me. 231, 36 Am. Dec. 713; Britt v. Aylett (1850), 11 Ark. 475, 52 Am. Dec. 282; Jackson v. Cleveland (1866), 15 Mich. 94, 90 Am. Dec. 266; Lawton v. Gordon (1867), 34 Cal. 36, 91 Am. Dec. 670; Springer v. Drosch (1870), 32 Ind. 486, 2 Am. R. 356: Gilbert v. Stockman (1892), 81 Wis. 602, 29 Am. St. R. 922, 51 N. W. R. 1076, 52 N. W. R. 1045: Gary v. Jacobson (1877), 55 Miss. 204, 30 Am. R. 514 [citing and approving Dyer v. Homer, 22 Pick. 253; Carpenter v. McClure, 39 Vt. 9, 91 Am. Dec. 370; Telford v. Adams, 6 Watts, 429: Harvey v. Varney, 98 Mass. 118; Nichols v. Patten, 18 Me. 231,36 Am. Dec. 713; Moore v. Thompson, 6 Mo. 353; Findley v. Cooley, 1 Blackf. 262; Springer v. Drosch, 32 Ind. 486, 2 Am. R. 356]; Clemens v. Clemens (1871), 28 Wis. 637, 9 Am. R. 520. At least if the plaintiff can make out his prima facie case with by refusing aid to either party, leave the parties in the situation in which they have placed themselves. In other words, "the law will not aid either of the persons committing or attempting the fraud, but will leave them where they have put themselves, without relief. If the contract is executory, it will not be enforced; and if executed, it will not be relieved against. If it has been performed in part, the law gives it effect in so far as it is executed, and holds it void in so far as it remains unexecuted." The weight of authority is with the latter view. § 948. This rule, however, does not, it is said, operate to prevent a party, who has transferred his property with fraudulent intent, from repenting of his fraud and recovering his property from his transferee to whom he has given notice of his change of purpose. Neither does it apply where there were really no creditors to defeat, but only a pretended claim fraudulently set up by the transferee for the very purpose of out being obliged to show the fraud. Evans v. Dravo (1854), 24 Pa. St. 62, 62 Am. Dec. 359; Swan v. Scott, 11 Serg. & R. (Pa.) 155; Carpenter v. McClure (1866), 39 Vt. 9, 91 Am. Dec. 370; Davis v. Mitchell, 34 Cal. 81. 1 Norris v. Norris (1840), 9 Dana (Ky.), 317, 35 Am. Dec. 138; Powell v. Inman (1862), 8 Jones L. (N. C.) 436, 82 Am. Dec. 426. [The note cites the following cases as to the same effect: Ager v. Duncan, 50 Cal. 325; White v. Crew, 16 Ga. 416; Miller v. Marckle, 21 Ill. 152; Ryan v. Ryan, 97 Ill. 38; Welby v. Armstrong, 21 Ind. 489; Brookover v. Hurst, 1 Met. (Ky.) 665; Walton v. Tusten, 49 Miss. 569; Hamil ton v. Scull, 25 Mo. 165, 69 Am. Dec. 460; Fenton v. Ham, 35 Mo. 409; Harwood v. Knapper, 50 Mo. 456; McCausland v. Ralston, 12 Nev. 195, 28 Am. R. 781; Demeritt v. Miles, 22 N. H. 523; Eyre v. Eyre, 19 N. J. Eq. 42; Church v. Muir, 33 N. J. L. 318; Nellis v. Clark, 20 Wend. 24; s. c., 4 Hill, 424; Johnson v. Morley, Hill & Den. 29; Niver v. Best, 10 Barb. 369; Westfall v. Jones, 23 Barb. 9; Briggs v. Merrill, 58 Barb. 389; Goudy v. Gebhart, 1 Ohio St. 262; Bradford v. Beyer, 17 Ohio St. 388; Harvin v. Weeks, 11 Rich. L. 601; Harrison v. Bailey, 14 S. C. 334; Walker v. McConnico, 10 Yerg. 228; Willis v. Morris, 63 Tex. 458, 51 Am. R. 655; Jones v. Comer, 5 Leigh, 350; Heath v. Van Cott, 9 Wis. 516.] Heineman v. Newman (1875), 55 Ga. 262, 21 Am. R. 279; Springfield, etc. Ass'n v. Roll (1891), 137 Ill. 205, 27 N. E. R. 184, 31 Am. St. R. 358; Williams v. Clink (1892), 90 Mich. 297, 51 N. W. R. 453, 30 Am. St. R. 443; Davis v. Sittig, 65 Tex. 497. 2 Per Morse, C. J., in Williams v. Clink, supra. 3 Carll v. Emery (1888), 148 Mass. 32, 12 Am. St. R. 515, 1 L. R. A. 618, 18 N. E. R. 574. 1 securing a conveyance to himself; nor it seems where the transferee by fraudulent practices has secured the conveyance. to himself of additional property which the transferrer did not intend to include.2 949. Basis and extent of creditor's right to interfere with sales. The whole body of the law upon the subject now in hand is based upon the theory that certain, at least, of a debtor's property may be made available by his creditors for the satisfaction of their claims, and that persons, in becoming his creditors, have to some extent relied upon his real or apparent ownership of property which could be made to respond to the demands thereby created. What these statutes aim to prevent, therefore, is the fraudulent disappointment of this expectation the disposition by the debtor of his property, not bona fide and for value, but with the intent to hinder, delay or defraud his creditors in their endeavors to apply it to their demands. § 950. A disposition, consequently, not made with this intent, or not having this effect, or one made bona fide and for value, presents no such objection; and if the disposition be of property to which the creditors could make no claim, the purpose or effect of its disposition must be a matter with which the creditors are not concerned. The debtor's dealings with his exempt property can therefore not be in fraud of creditors;* 1 In such a case, it is said, the parties are in delicto but not in pari delicto. Harper v. Harper (1887), 85 Ky. 160, 8 S. W. R. 5, 7 Am. St. R. 583; Boyd v. De la Montagnie (1878), 73 N. Y. 498, 29 Am. R. 197; Nichols v. McCarthy (1885), 53 Conn. 299, 23 Atl. R. 93, 55 Am. R. 105; Kleeman v. Peltzer (1885), 17 Neb. 381, 22 N. W. R. 793; Holliway v. Holliway (1883), 77 Mo. 392; Barnes v. Brown (1875), 32 Mich. 146. 3 The transfer of property which is exempt from execution cannot be fraudulent as against creditors. Union Pac. Ry. Co. v. Smersh (1888), 22 Neb. 751, 36 N. W. R. 139, 3 Am. St. R. 290; Blair v. Smith (1887), 114 Ind. 114, 15 N. E. R. 817, 5 Am. St. R. 593; Nance v. Nance (1887), 84 Ala. 375, 4 S. R. 699, 5 Am. St. R. 378; Freehling v. Bresnahan (1886), 61 Mich. 540, 28 N. W. R. 531, 1 Am. St. R. 617; Elliot v. Hall (1892), 2 Idaho, 2 Clemens v. Clemens (1871), 28 Wis. 1142, 31 Pac. R. 796, 35 Am. St. R. 637, 9 Am. R. 520. 285, 18 L. R. A. 586; Pipkin v. Will and, as to that not exempt, creditors can have reason to complain only when the intention and effect are to embarrass or defeat them. The subjects for the present investigation become, then, 1. What dispositions are contemplated; 2. How shall the intent be determined; and 3. Who are the creditors who can complain of them. § 951. What dispositions are obnoxious to the statutes.The means by which the debtor so disposes of his property as to hinder, delay or defraud his creditors is immaterial. The methods of fraud are infinite; its results are uniform. Secret conveyances, transfers in trust, judgments fraudulently confessed, fictitious considerations, are but a few of the more common devices; those with which the present investigation is concerned are such only as take on the semblance of a sale of chattels. And of these it is necessary here to take cognizance only of those which are the result of the voluntary act of the seller; for it is said, though as to this the authorities are not entirely agreed, that the rules and statutes now under consideration do not apply to forced sales, as, for example, those made upon execution. So where the sale is a public one, made, for example, in execution of a deed of trust, "the pub iams (1893), 57 Ark. 242. 21 S. W. R. Am. Dec. 253; Miles v. Richards, If the debtor retains or subsequently acquires ample property to satisfy present creditors, and has no intention to defeat future ones, an open conveyance of a part of his property will not be fraud. Brumbaugh v. Richcreek, 127 Ind. 240, 26 N. E. R. 664, 22 Am. St. R. 649; Usher v. Hazeltine, 5 Greenl. (Me.) 471, 17 But there must be actually, and not merely nominally, enough. Marmon v. Harwood, 124 Ill. 104, 7 Am. 2 See Huebler v. Smith (1892), 62 Conn. 186, 25 Atl. R. 658, 36 Am. St. R. 337; Lilienthal v. Ballou, 125 Cal. 183, 55 Pac. R. 251; Smith v. Crisman (1879), 91 Pa. St. 428. Contra: Stimson v. Wrigley (1881), 86 N. Y. 332; Kuykendall v. McDonald (1852), 15 Mo. 416, 57 Am. Dec. 212. licity of such sale dispenses with the necessity of an actual delivery of the possession."1 § 952. Bona fide conveyances for value cannot be impeached. As has been seen, the original statutes (speaking not yet of the statutes relating to retention of possession) exempt from their operation sales made to one who purchases in good faith and for a valuable consideration, even though the seller intended thereby to defraud his creditors. But to entitle such a purchaser to protection both elements must be present: . e., he must purchase not only in good faith but also for a valuable consideration. And where the consideration remains unpaid, in whole or in part, at the time of the sale, the purchaser can be protected only to the extent to which he has subsequently paid it before receiving notice of the fraud.' Three things, therefore, are necessary, and if present will suf 1 Clark v. Cox (1893), 118 Mo. 652, Tex. 597, 14 S. W. R. 700, 22 Am. St. 24 S. W. R. 221. R. 77, 11 L. R. A. 628 (citing to same Purchaser who pays part in cash and gives his note for the balance can be protected as to the balance represented by such note only when the note is negotiable, and he must show that it was so. Tillman v. Heller, supra. Negotiable note may be regarded as payment (Beurman v. Van Buren, 44 Mich. 496, 7 N. W. R. 67), but not a nou-negotiable one. Dixon v. Hill, 5 Mich. 404. |