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evidence of a contemporaneous oral agree-, were given, there was an agreement entered inment than other contracts. Jackson v. Chi- to, that they should be varied by the result of cago, etc., R. Co., supra. In the case last
subsequent examination, that agreement ought to
have been embodied in the written contract, or in cited Judge Ellison, speaking for the court, some other writing whereby to establish it. says:
The omission to do either is decisive of this "All written contracts, complete and definite,
branch of the defense. There is no allegation in speak for themselves, and they cannot be altered,
the plea, and no indication in the evidence, that added to, or subtracted from, by oral testimony.
this agreement was intended to be embraced in This is an absolute rule of evidence adopted
any writing, or that it was left out by fraud or from motives of policy and founded upon the
mistake." experience of mankind in dealing with the 'slip In Kenney v. Aitken, 9 Daly (N. Y.) 500, pery memory' of men. So that it must follow
the deed of trust involved was given to sethat if parties express their contracts, as to the consideration, in terms which show that it is a cure the payment of four specifically describcontract, then, if complete upon its face, it can ed notes. The maker of the trust deed no more be altered or varied than any other
brought an action upon an alleged contempocontract. Whenever the statement of the consideration leaves the field of mere recital and
raneous parol agreement with the cestui que enters into that of contract, as shown by the in trust that the latter should repay to him tention of the parties to be gathered from the the $400 represented by the last note, as the instrument, it is no longer open to contradiction. This may be illustrated: Suppose the considera
value of certain property covered by the trust tion in ă deed should be: In consideration of deed which was exempt from execution. the sum of $1,000 to be paid to me in beef cattle, Van Brunt, J., said: weighing not less than 1,200 pounds each, at Anth
"In the case of Cocks v. Barker, 49 N. Y. five cents per pound.' Would it be contended
107, it was held that the recital in the bond of a that a consideration thus expressed contractually could be orally shown to be other than as ex
fact, although the existence of that fact formed pressed? * But money may also be con
the consideration for the execution of the bond,
was a substantive part of the agreement, and tracted for as the consideration in a written con
not like the consideration clause of a conveyance tract. And when the intention to 80 contract is disclosed by the written instrument, no other
or other instrument which might within certain or additional consideration can be shown. Thus,
limits be explained and varied by parol. The
plaintiff in this action seeks to add to the deed suppose that the consideration was stated in the written contract to be '$1,000 to be paid as fol
of trust another and different agreement from lows: Two hundred dollars in 6 months from
that which is contained in the recitals.” date without interest, $400 in 12 months from That case on principle cannot be distindate with 3 per cent. interest, and $400 in 18
guished from the one before us. See, also, months from date with 10 per cent. interest from maturity, all to be secured by a mortgage' on
Union National Bank v. International Bank, certain described property. Could it be shown 22 Ill. App. 652; Falke v. Fassett, 4 Colo. in contradiction to this that the consideration App. 171, 34 Pac. 1005; Moffitt v. Maness, 102 agreed upon was 50 head of cattle or an additional sum of money? Clearly not. The rea
N. C. 457, 9 S. E. 399; Bowery Bank of New son is that it has been contracted otherwise by York v. Hart, 77 App. Div. 121, 79 N. Y. the parties, and that contract has been reduced Supp. 46; Knight v. Warren, 56 Hun, 642, 9 to writing.”
N. Y. Supp. 380; Cocks v. Barker, 49 N. Y. Where a deed recited the consideration as
107. the payment of a certain sum of money and | [8, 9] While it is competent to prove by the assumption by the grantee of certain spe parol evidence that a deed absolute on its cifically described debts of the grantor, it
face was intended as a mortgage, or by an was
eld that the statement of the considera- allegation of fraud or mistake to open the tion was contractual, and that parol evi- door to the fullest investigation as to the dence was not admissible to show the as
real intention of the parties to a written consumption of other debts as an additional tract and thus defeat or reform it, the facts consideration. Walter V. Dearing, supra.
must be pleaded and the proof must be clear See, also, Kahn v. Kahn, supra; Baum v. and convincing. These are well-recognized Lynn, 72 Miss. 932, 18 South. 428, 30 L. R. A.
exceptions to the general rule excluding 41; Hubbard v. Marshall, 50 Wis. 322, 6 N.
parol testimony. The first of these is sui W. 497.
generis, the second is not peculiar to mortThe better considered authorities hold,
gages, but applies to every kind of written and it seems to us a fortiori, that the same
contract. Neither is authority for the claim rule applies to mortgages. While we have
that an instrument purporting to be a mortfound no case an exact parallel to the one be
gage complete upon its face and unambigufore us on the facts, there are many which
ous as to the amount and character of the announce the governing principle. In Dyar
debt secured is any more subject to variav. Walton, Whann & Co., 79 Ga. 466, 7 S. E. I tion, extension, or contradiction by parol evi220, it was claimed by the mortgagor that a
umed by the mortgagor that a dence than are other less formal contracts. settlement closed up by absolute notes and To hold otherwise would render what commortgages was, by a contemporaneous oral
monly has been considered the surest securagreement of the parties, to be revised by ity for a debt, the most precarious. crediting all errors. Evidence to that effect
[10, 11] When a mortgage is given to sewas held inadmissible. The court said:
cure a sum of money, the receipt of which is "The defense, when analyzed, resolves itselt ackno
itselt acknowledged generally as in the usual coninto an effort to vary a written contract by parol, and to shun the consequences of gross neg- SI
sideration clause of a deed, parol evidence is cure future advances, and the actual amount, The mortgage gave the mortgagee the option of such advances, or to otherwise explain of paying the taxes, assessments, and insurthe nature of the debt intended to be secured. ance premiums, and carrying the same under Babcock v. Lisk, 57 Ill. 327. So, also, where the mortgage at his election. Parol proof a mortgage is given to secure a specific note that at the time the mortgage was given, cerdescribed therein, parol evidence is admis- tain assessments and premiums were due, sible to prove the true consideration of the and that he then elected to exercise the note and what debts the note is intended to option to pay and carry these items, did evidence. Wilkerson v. Tillman, 66 Ala. 532. not tend to change, add to, or vary either But the case here is neither of these. We the mortgage or the consideration upon have been cited to no authority and know of which it was based. none holding that where a mortgage is given In the case before us we are clear that the to secure a certain indebtedness specifically oral evidence of the alleged contemporaneous described therein, the character and com- promise sued upon was improperly admitted. ponents of which are known and admitted, it The judgment is reversed and the cause is is competent, without any allegation of fraud remanded, with direction to dismiss. or mistake, to prove that by a contemporaneous parol agreement it was intended to se: MORRIS, C. J., and CHADWICK, cure a debt of a wholly different origin and MOUNT, and FULLERTON, JJ., concur. character or an additional sum to be advanced by the mortgagee as an additional consideration for the mortgage. Much less is it competent to prove that by such an oral | RUSSELL & GALLAGHER v. YESLER ESagreement an additional sum was to be paid
TATE, Inc. (No. 12897.) as an additional consideration without any (Supreme Court of Washington. Jan. 11, 1916.) intention that it should be secured by the 1. CONTRACTS 198_AGREEMENTS TO ARBImortgage. Such proof in either case would | TRATE CONSTRUCTION. not be proving the consideration merely, but Where plaintiffs agreed with the defendants varying and enlarging the contract by add to build certain foundations for a building and
agreed further that they should be paid an ing new terms and conditions and creating 1.
amount to which was added all extras for new burdens. We said in Morris v. Healy changes ordered by the architect and from which Lumber Co., supra:
was subtracted all amounts by which the chang"Lastly it is contended that the court erred in
es decreased the cost of the building, agreeing excluding evidence as to the consideration that
that the decision of the architect should be con
clusive, but providing that in case of dispute as actuated the appellants in entering into the
to the true value of any work added or omitted lease. But such evidence was immaterial to
by the contractor the same should be arbitrated any issue made by the pleadings. While it is
by appealing to the city superintendent of buildpermissible for certain purposes to show by pa
Tings, and further agreeing that in case any difrol what the actual consideration was upon
ference of opinion should arise in relation to the which a deed is founded, it is never permitted
contract, the work to be performed under it or where the purpose of the evidence is to annex a
► the plans, drawings, and specifications, the de. condition to the instrument not expressed in it.”
cision of the architect should be final and bindThere is no reason either in law or logic ing, and stipulating for liquidated damages for why the same rule should not apply to a delay in performance, there was no agreement mortgage complete in every particular on its
for arbitration by the architect as to the value
of extra work or as to demurrage, in the abface. It will not do to say that the alleged sence of which agreement the plaintiffs were enagreement was a separate and independent titled to resort to the courts. contract. Clearly the promise here sought (Ed. Note.-For other cases, see Contracts, Cent.
Dig. $$ S01-877, 879-883; Dec. Dig. Om 198.] to be enforced, if independent of the mortgage, was without consideration, since the
2. CONTRACTS Om 198-SUBMISSION-MATTERS
SUBJECT TO ARBITRATION. respondent on the same day agreed in writ
Although the law favors the settlement of ing not only with the Englands, but also with disputes by arbitration, it will compel parties the appellant, on another consideration, to to resort thereto only when the terms of their extend credit and permit the logging opera
contract are clear and certain in showing that
they had such intention. tions to continue. The alleged promise to Ed. Note.-For other cases, see Contracts, Cent. pay the $1,000 could not have entered into Dis. 88 861-877, 879-883;' Dec. Dig. Om 198.] that agreement in any view of the case, since
Department 2. Appeal from Superior the respondent does not claim to have known of it until long afterwards.
Court, King County; John E. Humphries, We have gone into the matter thus fully
Judge. for the reason that we are now satisfied
Action by Russell & Gallagher, copartners, that in the case of Harbican v. Skinner, 83 against to
inner 89 against the Yesler Estate, Incorporated Wash. 596, 145 Pac. 582, we permitted our
From a judgment for plaintiffs, defendant selves to indulge a breadth of expression be- / appeals. Amrmed. yond the true rule and beyond the necessi- Hughes, McMicken, Dovell & Ramsey, and ties of that case. That case was decided cor- R. J. Venables, all of Seattle, for appellant. rectly, but should have been based alone Preston & Thorgrimson, of Seattle, for reupon the last ground stated in the opinion. I spondents.
PARKER, J. This is an action to recover buildings declined to act as arbiter, and that a balance due upon a building contract in- | therefore there is no question of the necescluding compensation for extra work and sity of submitting any disputed matter to material. The case was tried before the him. court without a jury, resulting in findings  We are not able to gather from the and judgment in favor of the plaintiffs, from language above quoted an intention on the which the defendant has appealed.
part of the parties thereto to make the archiIn April, 1913, respondents, Russell & Gal- tect the arbiter of the questions here involvlagher, entered into a contract with appel- ed, since there is not here involved any queslant, Yesler Estate, Incorporated, agreeing tion of the proper performance of the work to construct a certain portion of a building or the proper quality of the material enterabout to be constructed upon one of its lots ing into the structure, but only the question in Seattle. The provisions of the contract, of the value of the extra work and possibly so far as here necessary to notice them, are the quantity thereof, and the demurrage, all as follows:
of which questions seem by the terms of the "That the said party of the first part [respond contract to be subject to arbitration before ents), for and in consideration of the payments the superintendent of buildings. It seems to be made to them by the said second party as hereinafter provided, do hereby covenant, con- |
to us that the language of the contract refertract, and agree to do and fully complete, by the ring to such arbitration negatives the idea of 10th day of June, 1913, all of the digging, the power of the architect in that respect, trenching, cribbing, pumping, cleaning, excavat- I not ing, and build the foundation and basement |
not only as to the value of the extra work, walls. piers, and posts for a building to be but also as to the amount of the demurrage, erected, on the site described in the specifica- if any, chargeable to the respondents. It is tion, according to the plans, specifications, and in any event not at all certain that the pardrawings (which are declared to be a part of this agreement), made by A. Wickersham, ar- |
Peties to the contract agreed to make the archichitect (acting as agent for said owner), in a tect the final arbiter of any of the questions good, substantial, and workmanlike manner, to here involved. This of itself would entitle the satisfaction of and under the direction of said architect. * * tot
respondents to resort to the courts. "It is also further agreed that the said party  While the law favors the settlement of of the second part may make all alterations by disputes by arbitration, it will compel paradding, omitting, or deviating from the afore- ties to resort thereto only when the terms of said plans, drawings, and specifications, or either of them, which it shall deem proper, and their contract are clear and certain in showthe said architect shall advise, without impair- ing they have such intention. In the early ing the validity of this contract, and in all such case of Van Horne v. Watrons. 10 Wash. 525. cases the said architect shall value or appraise such alteration, and add to or deduct from the at page 527, 39 Pac. 136, at page 137, Judge amount herein agreed to be paid to the said first Stiles, speaking for the court, observed: party the excess or deficiency occasioned by such “Courts will enforce contracts to arbitrate disalteration, but should any dispute arise respect- putes and make the decision of arbitrators final ing the true value of any works added or omit
where the parties to a contract make it clearly ted by the contractor, the same shall be arbi
to appear that such was their intention; but trated by appealing to the superintendent of the
whenever they leave it doubtful whether such a buildings for the city of Seattle, who has been
method of settling a disputed question was inhereby mutually selected and whose decision
tended to be left to the final decision of arbitrashall be final and binding on all parties, each
tors, the construction is in favor of the right to party paying one-half of the fee. It is further
resort to the courts for redress in the usual agreed that in case any difference of opinion shall arise between said parties in relation to
manner." the contract, the work to be or that has been In Sweatt v. Bonne, 60 Wash. 18, 110 Pac. performed under it, or in relation to the plans, / 617. we said: drawings, and specifications, the decision of the said architect shall be final and binding on all
“Whatever the authority of an architect may parties hereto. * * *
be as an agreed arbiter between an owner and "It is further agreed should the contractor fail a contractor, the law will not regard the owner to finish the work at the time agreed upon, they bound by a decision of the architect, except in shall pay to or allow the owner. by way of
of so far as the owner has unmistakably agreed liquidated damages, the sum of $20 per diem,
to be so bound. Long v. Pierce County, 22 for each and every day thereafter the said works
Wash. 330, 61 Pac. 642; County of Cook v. shall remain incomplete, subject to the right
Harms, 108 Ill. 151; City of Elgin v. Joslyn, of arbitration above mentioned."
136 Ill. 525, 26 N. E. 1090; Chicago & E. I.
Co. v. Moran, 187 111. 316, 58 N. E. 335 : The real controversy is over claims of Fay v. Mublker [1 Misc. Rep. 321], 20 N. Y. respondents for extra work and material re Supp. 671; Fuller & Co. v. Young & Co., 126 quired of them because of change in plans of
Fed. 343 [61 C. C. A. 245].” the structure, and also a claim of demurrage This observation is, of course, applicable to made by appellant against respondents be- the rights of the contractor as well as to cause of delay in the completion of the work. those of the owner.
It is contended by counsel for appellant All other questions here involved are of that under the terms of this contract the fact only. We think it would be unprofitable architect became the agreed arbiter of the to analyze the evidence in detail, and feel disputed items of charge claimed by respond that we are not called upon to say more than ents, and also the disputed item of demur- that we have painstakingly reviewed all of the rage claimed by appellant against respond- evidence found in the statement of facts, and in favor of the conclusions reached by the , one claiming the benefit of the transaction to trial court both upon the question of respond- explain it by clear and satisfactory evidence. ents' claims for extra work and material). [Ed. Note.-For other cases, see Fraudulent
| Conveyances, Cent. Dig. 88 801, 802; Dec. Dig. and upon appellant's claim of demurrage.
maw 278.] In any event we cannot say that it prepon
6. FRAUDULENT CONVEYANCES 259 Oonderates to the contrary. We think the case VEYANCE TO WIFE – BURDEN OF PROOF – does not call for further discussion.
STATUTE. The judgment is affirmed.
Rem, & Bal. Code, $ 5292, putting the burden of proving good faith of the transaction up
on a wife to whom a husband has conveyed, MORRIS, C. J., and BAUSMAN, MAIN, does not exempt the transaction from the ordiand HOLCOMB, JJ., concur.
nary rules of pleading by one questioning the deed.
[Ed. Note. For other cases, see Fraudulent Conveyances, Cent. Dig. $756, 757, 764–766,
769, 770; Dec. Dig. 259.] CRANDALL et al. v. LEE. (No. 12877.)
7. FRAUD Cw41-PRESUMPTION. (Supreme Court of Washington. Jan. 7, 1916.)
Fraud is never presumed, and the burden of 1. FRAUDULENT CONVEYANCES 230, 241- pleading fraud is always on the one who asREMEDIES OF CREDITORS-EXECUTION. serts it.
A creditor may levy an execution upon the (Ed. Note. For other cases, see Fraud, Cent. property theretofore conveyed in fraud of his | Dig. 88 36, 37; Dec. Dig. On 41.] rights and sell it without resort to a creditor's bill, and without having an execution returned 8.
8. APPEAL AND ERROR O 889 – AMENDMENT nulla bona,
ON APPEAL-STATUTES. [Ed. Note.-For other cases, see Fraudulent
Under Rem, & Bal. Code, 8 307, providing Conveyances, Cent. Dig. 88 660-664, 694, 696–
that the court shall in every stage of an action 726; Dec. Dig. 237, 241.)
disregard any defect in the pleadings not af
| fecting the substantial rights of the adverse 2. FRAUDULENT CONVEYANCES 264-TITLE
party, and section 1752, providing that the SuACQUIRED AT EXECUTION SALE - ALLEGA preme Court shall hear and determine all causes TION AND PROOF.
upon the merits and shall consider all amendA creditor suing to quiet title acquired at ments which could have been made, the coman execution sale must go further than to assert plaint in a suit by the purchaser at a creditor's merely that the sale was made in fraud of his execution sale to quiet title as against an outrights, and must allege and prove that the gran- standing deed in the debtor's wife, where the tor had no other property out of which he could complaint did not state facts to constitute a have satisfied the judgment.
cause of action, and where the trial court made [Ed. Note.--For other cases, see Fraudulent no findings of fact, would not deem the pleadConveyances, Cent. Dig. 88 767, 768; Dec. Dig. ings amended to conform to the proof, since, w264.]
where there are no facts, there can be 90 3. FRAUDULENT CONVEYANCES 263–PUR
amendment. CHASE AT EXECUTION SALE - SUFFICIENCY
[Ed. Note.-For other cases, see Appeal and OF COMPLAINT.
Error, Cent. Dig. $$ 3621, 3622; Dec. Dig. Om In a suit by the purchaser at an execution 889; Pleading, Cent. Dig. 88 1355, 1418.] sale to quiet title to the land as against an out-19. FRAUDULENT CONVEYANCES Own 259PURstanding deed to the debtor's wife, the purchas
CHASERS AT EXECUTION SALE - RIGHT OF er must plead the facts upon which he relies,
ACTION. and a complaint in no way describing the deed, A complaint in a suit by the purchaser at although it was a matter of record showing the a creditor's execution sale to quiet title to the relationship of the parties, or charging actual or land as against an outstanding deed in the constructive fraud, did not state a cause of ac- debtor's wife, merely asserting such hostile title, tion so as to put the defendant to the burden of did not show that the foundation of the foreign proof.
judgment on which execution was had was either [Ed. Note.-For other cases, see Fraudulent an existing debt or an existing equity at the Conveyances, Cent. Dig. 88 771-774, 776–779, time the deed was executed. 781; Dec. Dig. Om 263.]
[Ed. Note.-For other cases, see Fraudulent 4. FRAUDULENT CONVEYANCES 230--LEVY Conveyances, Cent. Dig. $8 756, 757, 764–766, AND SALE BY CREDITOR-EFFECT.
1 769, 770; Dec. Dig. On 259.] A creditor may levy an execution and sell
10. FRAUDULENT CONVEYANCES 295-Eviproperty assumed to be conveyed in fraud of creditors, but such proceeding will not remove
DENCE - SUFFICIENCY - EQUITY OF PLAIN
TIFF. the cloud of an outstanding deed.
In a suit by the purchaser at an execution [Ed. Note.-For other cases, see Fraudulent
sale to quiet title to the land as against an outConveyances, Cent. Dig. 88 660-664; Dec. Dig.
standing deed in the debtor's wife, evidence held 230.]
insufficient to show that plaintiff stood in the 5. FRAUDULENT CONVEYANCES em 278 - CON- shoes of a creditor having an existing equity
VEYANCE FROM HUSBAND TO WIFE-PRE- at the time the deed to defendant was made. SUMPTION.
[Ed. Note.-For other cases, see Fraudulent In view of Rem. & Bal. Code, § 8766, pro- Conveyances, Cent. Dig. 88 867-875; Dec. Dig. viding that every deed from a husband to his om 295.1 wife shall divest the property from any claim as community property and vest it in the grantee Department 1. Appeal from Superior as separate property, and that such conveyance shall not affect any existing equity in fa
Court, Kitsap County; Walter M. French, vor of the creditors of the grantor, a deed from Judge. a husband to his wife is not presumptively Suit to quiet title by W. F. Crandall and fraudulent, either as matter of substantive law others against Elizabeth M. Lee. Judgment or of pleading, but may be questioned as any other deed, and, if attacked by a sufficient plead-for der ing and preliminary proof, the burden is on the firmed.
Shorett, McLaren & Shorett, of Seattle, for ings amended to conform to the proofs. Apappellants. Thomas Stevenson, of Bremer- pellants brought their action, alleging no ton, for respondent.
more than that they were the owners in fee
of the property, that defendant claimed CHADWICK, J. On Feb. 6, 1911, the ap- some right or title in it adverse to them, the pellant W. F. Crandall and another brought exact nature of which they could not aver, suit against Milton S. Lee, husband of the de- and prayed that she be required to come in fendant, in the district court of New Mexico. and set up her interest, if any, and that tiJudgment was rendered in the courts of that | tle be quieted in them. state on April 20, 1911. On February 1st [1, 2] The case of Wagner y. Law settled Milton S. Lee conveyed the land now in con- two legal propositions. They are: A credittroversy to respondent by deed sufficient in or may levy an execution upon property form. The property is situate in the county theretofore conveyed in fraud of his right of Kitsap, in this state. At the same time and sell it without resort to a creditor's bill Lee conveyed to respondent 480 acres of land and without having an execution returned in the state of Arkansas. The deed to the nulla bona; and, second, if he brings an acKitsap county land was recorded in the of- tion to quiet the title acquired at an execufice of the auditor on the 7th day of Febru. tion sale, he must go further than to assert ary, 1911.
merely that the sale was made in fraud of On June 19, 1911, the judgment creditors his rights, as was done in Wagner v. Law. began an action upon the foreign judgment, He must allege and prove that the grantor making Lee and his wife defendants. The had no other property out of which he could Lees are nonresidents. Service was obtained have satisfied the judgment. The case has by publication after the lands had been sub-been followed in: Hamilton Brown Shoe Co. jected to an attachment. The defendant v. Adams, 5 Wash. 335, 32 Pac. 92; Samuel Elizabeth M. Lee, respondent here, made an- v. Kittenger, 6 Wash. 266, 33 Pac. 509; Sawswer, tendering the general issue, and that telle v. Weymouth, 14 Wash. 21, 43 Pac. 1101; the court rendering the judgment had ob- Preston Parton Mill Co. V. Dexter Horton tained no jurisdiction over her or the sub-Co., 22 Wash. 236, 60 Pac. 412, 79 Am. St. ject-matter of the action. Judgment was en. Rep. 928. In the latter case the court said tered on June 29, 1912, against Milton S. of Wagner v. Law: Lee and the community consisting of Milton "A careful examination of this case shows S. Lee and Elizabeth M. Lee. The property that it was an action by the judgment creditor was thereafter sold at sheriff's sale to these
to set aside a fraudulent conveyance which was
alleged to be a cloud upon plaintiff's title. The appellants. The sale was confirmed and a plaintiff was a creditor, and had, under execusheriff's deed executed. Thereupon appel tion, purchased the property. The real ques·lants brought an ordinary suit to quiet title
tion in the case seemed to be that the judg
ment creditor had a right to maintain his action to the land as against the outstanding deed
to set aside the fraudulent conveyance after of the defendant.
he had enforced his execution under his judgAfter a trial upon the merits the rourt, ment; that it was not then too late for him to
maintain his action. The suit was between the following the case of Wagner v. Law, 3
I judgment creditor and the fraudulent grantor Wash. 500, 28 Pac. 1109, 29 Pac. 927, 15 L. R. and grantee. But it was also held in that A. 784, 28 Am. St. Rep. 56, as we are told, case that the complaint did not state facts suffiheld that plaintiffs could not recover un
cient to constitute a cause of action, when it
failed to allege that there was no other property der their complaint. It is not clear from the of the judgment creditor at the time of the conrecord, but it would seem, that the court veyance out of which the creditor could satisfy treated the action as a suit by creditors to his judgment.' subject land alleged to have been conveyed It is clear that appellants' complaint is bad in fraud of their rights to the payment of under the doctrine of these cases, unless, as their claims, and, under the authority of the it is contended, the burden was upon the decase mentioned, held that it was necessary fendant wife to come forward and plead and for the plaintiffs to allege and prove that prove that the deed was executed in good the debtors had no other property subject to faith, or that appellants were not creditors execution at the time the conveyance wes having an existing equity. made, and rendered a judgment in favor of [3, 4] After mature consideration and a rethe defendant upon the theory that the com- reading of the cases referred to, we are inplaint did not state a cause of action.
clined to hold that one who questions a deed Appellants contend: First, that they are must plead the facts upon which he relies. within the rule of Wagner v. Law, if it be This must of necessity be so, unless we adin point; and, second, that it is not in point, mit appellants' contention that a deed from for the reason that in that case the convey- a husband to his wife is "presumptively ance was not made by a husband to a wife, fraudulent." If it is not to be treated as a and therefore "presumptively fraudulent" as void thing as to third parties, the complaint to creditors; and, further, that the case went is clearly insufficient. Appellants contend in off on demurrer, whereas the present case their brief that it is a void deed. The comwaz tried upon its merits, and we will, under plaint does not in any way describe the deed,