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to accomplish the purposes of the law is usually a question of fact for the jury.1

1 Question of sufficiency for juryIllustrations.-In McKibbin v. Martin (1870), 64 Pa. St. 352, 3 Am. R. 588, two sons who were carrying on a hotel, in which their father lived with them, dissolved their partnership, and sold their interest in the furniture and business to their father. The dissolution of their partnership and the fact of the sale were published in two leading newspapers. The sons continued to live in the house and one of them acted as su perintendent. Afterwards the furniture was seized by creditors of the sons. Held, that the sufficiency of the change of possession was for the jury to determine. In Porter v. Bucher, 98 Cal. 454, 33 Pac. R. 335, plaintiff and her husband lived to gether on a farm on which husband had filed a declaration of homestead. She owned about one hundred and fifty head of cattle and horses which were kept on this farm, and purchased from her husband about one hundred and thirty tons of hay, which had been raised on the farm and stacked in corrals thereon; these corrals had been used for several years for the purpose of stacking hay in them in summer and feeding it directly from the stack to stock in winter. In the previous year the plaintiff had bought from her husband hay stacked in these corrals and had fed it therefrom. In the present sale, she and he had gone to the stacks, estimated the quantity of hay, agreed on the price, he orally delivered possession, and she made a part payment, closed the gates of the corrals, and later paid the remainder of the price to him. When she left

the farm for a six weeks' visit, she requested one of her former employees to look after the hay for her. There was a custom in that vicinity for stock-owners, when they purchased hay, to take their stock to the stacks and feed the hay directly from the stack. Held, that the question whether or not there was an immediate delivery, followed by an actual and continued change of possession, was for the jury. In Thompson Mfg. Co. v. Smith, 67 N. H. 409, 29 Atl. R. 405, the vendee examined and accepted the engine, and took with him such parts as were liable to be stolen or lost, such as gaugecocks, etc. Held, that the question whether or not there was a sufficient change of possession was for the jury. In Tennent-Stribling Shoe Co. v. Rudy (1893), 53 Mo. App. 196, R., after negotiation with H., made on May 10th an invoice of his stock of goods, and on May 11th made a bill of sale of the stock to H. at the invoice price of $2,232.69. H. in payment therefor surrendered to R. notes held against him amounting to $700, and assumed to pay other indebtedness of R. amounting to the remainder of the purchase price. On account of other business H. was unable to take charge of the store in person, but he took his bookkeeper out of his cigar establishment and set him at work in the store, and was himself there frequently from the date of the purchase until the goods were attached, eight days later. Immediately after the sale was completed H. notified the creditors whose debts he had assumed to pay that he had purchased the stock and as

§ 968. Doubts resolved in favor of creditor or purchaser. And where the question of the sufficiency is in doubt, the doubt, it is said, ought to be solved in favor of the creditor or

sumed their debts and that he had replenished the stock with new goods. H. afterwards paid these debts. H. retained R.'s clerk in his employ, and neglected to destroy R.'s sign which was painted on the body of the building, and also failed to change the name on the delivery wagon. Held, the sufficiency of the change of possession was for the jury. In Sharpless Bros. v. Derr (1895), 62 Mo. App. 359; s. c., 1 Mo. App. R. 529, Phil. Derr was indebted to his brother Ed. They went to an attorney and had a bill of sale of the stock in "Derr's Dry Goods Store," of which P. was proprietor, drawn up, and the price agreed on, which price was to apply on P.'s debt to E. P. then returned to the store and informed the clerks of the sale, and in a few minutes E. returned and told the clerks of the sale and hired them to act as his clerks. E. also hired P. to act as his manager. E. remained in the store that day and took charge of affairs, wrote letters to other creditors informing them of his purchase, had notices of the sale published in the several papers of the town (one daily and two weeklies), and he and all others at work in the store announced the sale to all persons coming in. Insurance policies and bank accounts were also changed to E.'s name. No change was made in the sign "Derr's Dry Goods Store," since that was conceived by P. and E. to be correctly descriptive of the new state of affairs. Next day E. returned to his home and left P. in charge as manager. Held, that a verdict of actual and continued change

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of possession will not be set aside, although the case is on the borderline. In White v. Pease (1897), 15 Utah, 170, 49 Pac. R. 416, W. received a bill of sale for a quantity of grain in a locality remote from transportation and from place where W. lived. Whether delivery was made within a reasonable time, when W. drove forty-five miles in order to obtain teams with which to remove the grain, is a question of fact for the jury. In McGuire v. West (1897), Ky. App. -, 43 S. W. R. 458, some hogs had belonged to W.'s employee, who kept them at W.'s logging camp, and allowed them to follow cattle owned and fed by W. W. purchased the hogs of his employee, the latter to be credited on an obligation he owed W. The hogs were to remain at the camp and feed after the cattle awhile before being weighed. During this interval an execution was levied upon them by M. Held, that the question of sufficiency of change of possession was one for the jury. In Brown v. Harmon (1898), 29 App. Div. 31, 51 N. Y. Supp. 820, the bill of sale was executed by the vendor at a time when he was being pressed by his creditors. It covered all his goods, wares, merchandise and store fixtures, and was delivered to the vendee on Friday evening, and at the same time the vendor, after locking the doors, handed the key to the vendee. Next morning the vendee handed the vendor the key, and told him to go to the store and open it and sell the goods that day, and close the store at night. On that day the vendor sold six or seven dollars' worth of

subsequent purchaser, and against the first purchaser, because it was within the latter's power to make the matter clear.1

§ 969. Who are creditors.—The statute of 13th Elizabeth aimed at the protection of "creditors and others" in "their just and lawful actions, suits, debts, accounts, damages, penalties," etc., and it becomes material to ascertain who are the "creditors and others" who are protected by this and the various enactments copied after it. And first it may be noticed that, in this as in other respects, the construction which has been put upon these acts is a liberal one, designed to further their beneficent purposes, and has not "stuck in the bark."

§ 970. Nature of demand-Contract or tort—In judgment. In respect of the nature of their demands, therefore, it is the settled rule that all those are creditors who have claims enforceable by legal process, whether such claims are based upon express or implied contract, or not. One entitled to re

goods. On the next Monday the vendor again went to the store, put some posters in the window, advertising an auction sale of the goods. and boxed up some of the goods which B., the vendee, did not wish to sell. The signs upon the building and the awning were not changed. Vendee was vendor's mother-in-law and lived in his family. Held, the question of change of possession was one for the jury, and a directed verdict for the vendee was set aside.

1 Anderson v. Brenneman (1880), 44 Mich. 198.

2 Thus in Bongard v. Block, 81 Ill. 186, 25 Am. R. 276, the court say that the word "creditors" is not "used in the strict technical sense, but includes all parties who have demands, accounts, interests or causes of action, for which they might recover any debt, damages, penalty or forfeiture; that such were the interests which the statute expressly says

shall be protected, and therefore all persons having such interests must be included in the word 'creditors.'" And in Anderson v. Anderson. 64 Ala. 403, the court say: "The term creditors, as employed by the statute, has been construed liberally, and not in a narrow, strict or technical sense. Whoever has a right, claim or demand founded on contract, whether contingent or absolute, for the performance of a duty, or for the payment of damages if the contract should not be fully performed, has been regarded as a creditor within the meaning of the statute, against whom a voluntary conveyance will not be supported, though no breach of the contract, furnishing a cause of action, may occur until after the execution of the conveyance. Bibb v. Freeman, 59 Ala. 612; Foote v. Cobb, 18 Ala. 585; Gannard v. Eslava, 20 Ala. 732."

cover damages for the commission of a tort is no less a creditor than he who is entitled to damages for the breach of contract.1 Neither is it necessary that the claim, whether in contract or in tort, shall have matured or been in action at the time when the fraudulent transfer was consummated: if the claim existed then it is sufficient,2 though it must usually be reduced to judgment before it can be made the actual basis of attack.3

1 Claims for the recovery of damages for torts are, before judgment, necessarily uncertain and unliquidated, but by the weight of authority the claimants are entitled to protection, as creditors, even before suit or judgment, against conveyances intended to defeat them. Bongard v. Block, 81 Ill. 186, 25 Am. R. 276; Walradt v. Brown, 1 Gilm. (Ill.) 397, 41 Am. Dec. 190; Greer v. Wright, 6 Gratt. (Va.) 154, 52 Am. Dec. 111; Lowry v. Pinson, 2 Bailey, L. (S. C.) 324, 23 Am. Dec. 140; Philbrick v. O'Connor, 15 Oreg. 15, 13 Pac. R. 612, 3 Am. St. R. 139; Shean v. Shay, 42 Ind. 375, 13 Am. R. 366.

As long ago as Twyne's Case, 3 Coke, 80, it was said that "this act doth not extend only to creditors, but to all others who had cause of action, or suit, or any penalty, or forfeiture, etc." That it applies to torts, see also: Corder v. Williams, 40 Iowa, 582; Weir v. Day, 57 Iowa, 84; Hoffman v. Junk, 51 Wis. 613; Harris v. Harris, 23 Gratt. (Va.) 737; Cooke v. Cooke, 43 Md. 522; Welde v. Scotten, 59 Md. 72; Westmoreland v. Powell, 59 Ga. 256; Simons v. Busby, 119 Ind. 13, 21 N. E. R. 451; Lyne v. Wann, 72 Ala. 43; Cole v. Terrell, 71 Tex. 549,

3 Unless changed by statute, as in Alabama, the rule is practically universal that before a creditor can commence proceedings to set aside the fraudulent conveyance he must,

9 S. W. R. 668; McVeigh v. Ritenour, 40 Ohio St. 107; Jackson v. Myers, 18 Johns. (N. Y.) 425. Even before suit brought or judgment obtained. Shean v. Shay, supra; Corder v. Williams, supra.

The dictum of Judge Cooley in Hill v. Bowman, 35 Mich. 191, contra, is said to be opposed to the weight of authority, and is weakened if not destroyed by Schaible v. Ardner, 98 Mich. 70, 56 N. W. R. 1105. But in Connecticut and Vermont "creditors" are those only whose claims are based upon contract. Fox, v. Hills, 1 Conn. 294; Fowler v. Frisbie, 3 Conn. 320; Beach v. Boynton, 26 Vt. 725; Green v. Adams, 59 Vt. 602, 59 Am. R. 761, 10 Atl. R. 742.

2 As to torts, Shean v. Shay, 42 Ind. 375, 13 Am. R. 366; Corder v. Williams, 40 Iowa, 582. Contra, Hill v. Bowman, 35 Mich. 191, dictum. But see Schaible v. Ardner, 98 Mich. 70, 56 N. W. R. 1105.

In case of claims based on contract the right of attack dates from the time of making the contract. Hamet v. Dundass, 4 Pa. St. 178; Howe v. Ward, 4 Me. 195; Cook v. Johnson, 12 N. J. Eq. 51, 72 Am. Dec. 381; Stone v. Myers, 9 Minn. 303, 86 Am. Dec.

by judgment, levy or otherwise, have acquired a lien upon the property involved. Wait on Fraud. Convey., $73; 2 Bigelow on Fraud, 136.

§ 971. Absolute or conditional.-Neither is it necessary that the claim, at the time of the transfer, shall have been an absolute rather than a conditional or collateral one: sureties and indorsers are creditors of their principals and of each other to the extent of their right to contribution or indemnity,' while the obligees are creditors not only of the principal debtors but of the indorsers and sureties as well.2

§ 972. Existing and subsequent creditors What conveyances existing creditors may avoid. In respect of the time when the creditors became such, there can ordinarily be little question concerning those whose claims were in existence at the time of the conveyance alleged to be fraudulent. As to these, who are usually designated "existing creditors," it seems now to be the generally established rule that, while conveyances with actual fraudulent intent are of course voidable, conveyances merely voluntary, though by some authorities deemed also fraudulent per se, are to be regarded simply as presump

104; Thompson v. Thompson, 19 Me. 244, 36 Am. Dec. 751; Woolridge v. Gage, 68 Ill. 157; Anderson v. Anderson, 64 Ala. 403; Gannard v. Eslava, 20 Ala. 732.

2 Cook v. Johnson, 12 N. J. Eq. 51, 72 Am. Dec. 381.

3 In the famous case of Reade v. Livingston (1818), 3 Johns. (N. Y.) Ch. 481, 8 Am. Dec. 520, Chancellor Kent, A claimant in bastardy proceed- after an elaborate review of the Engings is a creditor before judgment, lish and American cases, reached the though she cannot attack the con- conclusion that where the party is veyance until after judgment has indebted at the time of the voluntary been obtained. Pierstoff v. Jorges, conveyance, it is fraudulent as a pre86 Wis. 128, 39 Am. St. R. 881, 56 N. sumption of law, and that this preW. R. 735. So where wife in divorce sumption does not depend upon the proceedings claims alimony. Byrnes amount of the debts, or the extent of v. Volz, 53 Minn. 110, 54 N. W. R. 942. the property or the circumstances of 1 Bowen v. Hoskins, 45 Miss. 183, the party. This strict rule has since 7 Am. R. 728; Pashby v. Mandigo, 42 been repudiated in New York (SewMich. 172, 3 N. W. R. 927; Rogers v. ard v. Jackson, 8 Cow. 406; Cole v. Abbott, 128 Mass. 102; Post v. Stiger, Tyler, 65 N. Y. 73; Dunlap v. Hawk29 N. J. Eq. 554; Shurts v. Howell, 30 ins, 59 N. Y. 342; Smith v. Reid (1892), N. J. Eq. 418; Bibb v. Freeman, 59 134 N. Y. 568, 31 N. E. R. 1082), though Ala. 612; Loughridge v. Bowland, 52 it has been followed in a few other Miss. 546; Van Wyck v. Seward, 18 cases. Hanson v. Buckner, 4 Dana Wend. (N. Y.) 375; Rynearson v. (Ky.), 251, 29 Am. Dec. 401. Turner, 52 Mich. 7, 17 N. W. R. 219.

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