ereditors; for it is clear, that if a conveyance be made colorably with actual intent to defraud any existing creditor or creditors, it may be avoided by subsequent creditors; in other words, that evidence of collusion against existing creditors is sufficient evidence of fraud against subsequent creditors;(1) [otherwise it would be easy to evade the statute, the party might pay off those to whom he is indebted at the time he is making the settlement, by borrowing of others, and, then, say to these last, "I did not make the settlement to defraud you, but to defraud the other persons who were my creditors."] However, the principle above stated is probably limited to voluntary and colorable conveyances, which are accompanied in law by the presumption of a secret trust for the grantor; according to the distinction stated in Clark v. French, 23 Maine, 221, that a conveyance made on a secret trust for the grantor, for the purpose of defrauding present creditors, is void also against subsequent creditors, because such a fraud is a continuing one; but that an absolute conveyance on valuable consideration and without any secret trust for the grantor, if actually intended to deprive existing creditors of satisfaction of their debts, would be void against such creditors, yet would not be void against subsequent ones:-there is no doubt, upon the American authorities, that a conveyance for valuable consideration made with an actually fraudulent intention to one taking part in such fraudulent designs, would be void against the creditors intended to be defrauded ;(2) it is doubtful however, *whether it could be [*41 considered void against any creditors but those whose injury was specially contemplated. (3) An intent actually to defraud creditors is to be legally inferred from the grantor's being insolvent at the time, or

(1) Wadsworth v. Havens, 3 Wendell, 411; Parkman v. Welch, 19 Pickering, 221, 237 ; Smith v. Parker, 41 Maine, 453; Smith v. Lowell, 6 New Hampshire, 67, 69; McConihe e. Sawyer, 12 Id. 397, 403; Young v. Pate, 4 Yerger, 164; Hester et als. v. Wilkinson et als., 6 Humphreys, 215, 218; Hoke v. Henderson, 3 Devereux, 12, 14; Edwards, &c., v. Coleman, 2 Bibb, 204, 205; Todd v. Hartley, 2 Metcalfe's Kent. 207 (where a departure from the principle is rested on the Kentucky Statute, Rev. St. ch. 40, § 2, p. 263); Lewis ». Love's Heirs, 2 Ben. Monroe, 345, 347; Hutchinson et al. v. Kelly, 1 Robinson's Virginia, 125; Elliott v. Horne, 10 Alabama, 348, 352. In Williams v. Banks, 11 Maryland, 249, 250, the general principle was admitted and subsequent creditors were kept out on the strength of the Maryland registration acts; on the effect of which in controlling the Statutes of Eliz. see also Cooke's Lessee v. Kell, 13 Id. 489.

(2) Lowry v. Pinson, 2 Bailey, 324, 328; Thomas & Ashby v. Jeter & Abney, 1 Hill's So. Car. 380; Union Bank v. Toomer, 2 Hill's Chancery, 27, 31; Edgell v. Lowell et al. 4 Vermont, 405, 412; Fuller, Jr., v. Sears et al., 5 Id. 527, 530; Beals v. Guernsey, 8 Johnson 446, 452; Wickham v. Miller, 12 Id. 320, 323; Streeper v. Eckart, 2 Wharton, 302, 308; Dean v. Connelly, 6 Barr, 239, 250; Ashmead v. Hean & Moulfair, 1 Harris, 584, 588; The Farmers' Bank et al. v. Douglass et al., 11 Smedes & Marshall, 472, 545; Ward, &c., v. Trotter, &c., 3 Monroe, 1, 3; Trotter v. Watson, 6 Humphreys, 509, 512 (see this subject discussed in Brown v. Foree, &c., 7 B. Monroe, 357; Brown v. Smith, Id. 361; Kendall ». Hughes, Id. 368); but see Wood v. Dixie, 7 Queen's Bench, N. S. 893; (3) Lynch v. Raleigh, 3 Indiana, 275. See Winn v. Barnett, 31 Missis. 659.

greatly embarrassed, or so largely indebted that his conveyance necessarily has the effect to hinder and defraud creditors, [or by a trust for the grantor's own benefit, and inconsistent with an absolute transfer, the trust showing a design to give him the benefit and control of his property (Coolidge v. Malvin, 42 N. H. 311);] and a voluntary conveyance made under such circumstances, may be set aside by a subsequent creditor; (1) indebtedness raises a presumption of fraud, which becomes conclusive by insolvency.(2) But the presumption of fraud as to subsequent creditors arising from indebtedness is repelled by the fact of those debts being secured by mortgage, or by a provision in the settlement ;(3) or by proof of an understanding and agreement, not in the deed, that the trustee was to pay such debts by the sale of so much property ;(4) it is rebutted also, and if it were the only circumstance of presumptive fraud in the case, would probably be entirely repelled by the subsequent voluntary payment of those debts by the grantor; because that shows that the grantor was not insolvent, and that he intended no fraud against existing creditors;(5) [or by a satisfaction of them on execution and sale of less than the whole property: (6) and if there be property other than that alleged to have been fraudulently conveyed, it is said that it should be first exhausted unless the conveyance was fraudulent in fact: dictum in Law v. Smith, 4 Indiana, 61. But this dictum seems open to question; for if the conveyance be fraudulent at all, either in law or in fact, it is utterly void, and there is no assignment in the case ;(7)] but if those earlier debts are paid off by contracting new ones, or remain until, in the insolvency of the debtor, they are paid off on account of their priority, it is obvious that such a discharge of subsisting debts does not repel the presumption of fraud so as to render the *conveyance valid against subsequent creditors.(8) In equity if a conveyance is

*42]

(1) Gilmore v. The N. A. Land Co., 1 Peter's C. C. 460, 464; Ridgeway v. Underwood, 4 Washington, 129, 137; Reade v. Livingston, 3 Johnson's Chancery, 481, 497, 501; Thomson v. Dougherty, 12 Sergeant & Rawle, 448, 458; Howe v. Ward, 4 Greenleaf, 195, 208; Iley v. Niswanger, 1 McCord's Chancery, 518; Henderson v. Dodd, 1 Bailey's Equity, 138, 140; Taylor v. Ex'r of Heriot, 4 Desaussure, 227, 232; Smith ». Greer et al., 3 Humphreys, 118, 121; Morgan v. McLelland, 3 Devereux, 82; Doyle, &c., v. Sleeper, &c., 1 Dana, 531; and see Green v. Tanner and others, 8 Metcalf, 411, 419; and see Colquet v. Thomas, 8 Georgia, 275.

(2) Hutchinson et al. v. Kelly, 1 Robinson's Virginia, 125; Bank of Alexandria v. Patton, &c., Id. 500, 527; Wilson v. Buchanan, 7 Grattan, 340.

(3) Reade v. Livingston; Ridgeway v. Underwood; Anon. 1 Wallace, Jr., 121; Johnson v. Zane's Trustees, 11 Grattan, 563; though the provision ought not to have any unusual feature, Id.

(4) Hester et als. v. Wilkinson et als., 6 Humphreys, 215, 219.

(5) Bank of Alexandria v. Patton, &c., 1 Robinson's Virginia, 500, 536; Hudual v. Wilder, 4 McCord, 295, 304; Izard v. Izard, 1 Bailey's Equity, 228, 237.

(6) Thacker v. Saunders, 1 Busbee's Equity, 146.

(7) See Wilson v. Buchanan, 7 Grattan, 342.

(8) Madden v. Day, 1 Bailey, 337, 341; McElwee v. Sutton, 2 Id. 128, 130.

set aside by the prior creditors, as being voluntary, and fraudulent as against them, the whole settled estate becomes assets, and the subsequent creditors are entitled to come in upon the proceeds. 1)

Where a parol gift of land by a father to his son, was made while the father was unembarrassed, and a conveyance executed after he had become involved in debt, and under circumstances to show an intention of saving the property from liability to creditors, it was decided that the transfer was invalid against creditors; but that the son had a lien on the land for the value of improvements which he had made upon it.(2)

The statute, 13 Elizabeth, c. 5, protects creditors and others; and a liberal construction in allowing to persons who are or might be injured by a fraudulent conveyance the character of creditors under this statute, has always prevailed. As to rights from contract, any one liable upon a contract, express or implied, though only contingently, is a debtor from the time that the liability is entered into; accordingly, a surety is a creditor of the co-obligor, or co-sureties, from the time that the obligation is entered into :(3) and those interested in an official bond, are creditors of the surety from the time that the bond is executed by him;(4) the guarantee of an assigned judgment is a creditor of the guarantor from the time that the guaranty is given ;(5) a plaintiff in an action for breach of promise to marry, and a defendant who, after judgment against him, obtains a reversal of it, and a judgment in his favor, are creditors from the commencement of the suit at least ;(6) and a debt existing before the time of the conveyance, and renewed afterwards with the same endorser, will be considered, especially by courts of equity, as the same continuing debt.(7) Where the claim is founded on tort, for example in an action of slander, the plaintiff from the time that the action is begun, is so far a creditor as to be able to avoid conveyances made with an actual intent to defraud him;(8) but in Meserve v. Dyer, 4 Greenleaf, 52, it was considered that a plaintiff in trespass, vi et armis, was to be considered as a creditor only from the time of the judgment.(9) A creditor who (1) Reade v. Livingston, 3 Johnson's Chancery, 499; Kipp v. Hanna, 2 Bland, 26, 35; Iley. Niswanger, 1 McCord's Chancery, 518, 522; Ingram v. Phillips, 5 Strobhart, 200; Thomson v. Dougherty, 12 Sergeant & Rawle, 448, 455, 456.

(2) Rucker, &c., v. Abell et al., 8 B. Monroe, 566.

(3) Howev. Ward, 4 Greenleaf, 195, 202; Sargent v. Salmond, 27 Maine, 539, 542. (4) Hutchison et al. v. Kelly, 1 Robinson's Virginia, 125, 136; Carlisle v. Rich, 8 New Hampshire, 44.

(5) Jackson v. Seward, 5 Cowen, 67; acc. Spencer, contra Stebbins, in S. C. 8 Id. 407, 429, 437, and acc. Tracy, Van Wyck & Savard, 18 Wendell, 375, 405; see also McLaughlin v. Bank of Potomac et al., 7 Howard, 220, 229; Williams v. Banks, 11 Maryland, 242. (6) Lowry v. Pinson, 2 Bailey, 324, 328; Parsons v. McKnight, 8 New Hampshire, 35. (7) McLaughlin v. Bank of the Potomac et al., 7 Howard, 220, 228.

(8) Jackson v. Myers, 18 Johnson, 425; Lillard v. McGee, 4 Bibbs, 165; see Fox v. Hills, 1 Connecticut, 295; Langford v. Fly, 7 Humphreys, 585, and Clapp v. Leatherbee, 18 Pickering, 131; Rogers v. Evans, Indiana, 576.

(9) See McErwin v. Benning, 1 Hawks, 474.

blends prior and subsequent debts in one judgment, can come in only as a subsequent creditor, at least at law. (1) An assignee by act of law, for the use of creditors, such as an assignee in bankruptcy, is vested with the rights of creditors, for the purpose of vacating fraudu*43] lent assignments; (2) and the assignee, under an insolvent law, possesses the same rights;(3) but the a-signee, under a voluntary assignment for the benefit of creditors, has in this respect no other rights than the grantor had, and is not entitled to set aside a previous fraudulent conveyance.(4) In Bayard v. Hoffman, 4 Johnson's Chancery, 450, the assignees were also creditors, and their bill might have been regarded as a creditor's bill; though in Storm v. Davenport, 1 Sanford's Chancery, 135, 138, that case is said to be overruled.

Whether an administrator may set aside a fraudulent conveyance of his intestate when the property is wanted for the payment of debts, has been much disputed. The general principle is clear that a fraudulent conveyance is good between the parties and their representatives; and the fraudulent donee may recover the property from the executor or administrator; (5) even if the latter be a creditor.(6) The creditors also, have their remedies independently of the administrator; for a fraudulent denee taking or keeping possession of the goods is, at common law, liable to creditors as executor de son tort;(7) and the creditors are entitled to go into equity against the property in the hands of the fraudulent grantee; and in such a proceeding, the administrator ought to be made a party, that the property when recovered may be received by him, and go in a course of administration;(8) and this is probably so whether the bill be in form of a creditor's bill, or the bill of an individual creditor ;(9) but where the conveyance is of real estate,

(1) Usher v. Hazeltine, 5 Greenleaf, 471.

(2) Edwards, &c., v. Coleman, 2 Bibb, 204.

(3) Doe d. Grimsby v. Ball, 11 Meeson & Welsby, 531; Englebert v. Blanjot, 2 Wharton, 240.

(4) Brownell v. Curtis, 10 Paige, 212, 218; Storm v. Davenport, 1 Sanford, 135, 138; Vandyke". Christ, 7 Watts & Sergeant, 373, overruling contrary dicta in Englebert v. Blanjot, and in Irwin v. Keen, 3 Wharton, 347.

(5) Hawes v. Leader, Cro. Jac. 270; S. C. Yelv. 196; 1 Brownl. 111; Starke's Ex'rs v. Littlepage, 4 Randolph, 368; Drinkwater v. Drinkwater, 4 Massachusetts, 354, 360; Killinger v. Reideuhauer, Adm'r of Smith, 6 Sergeant & Rawle, 531.

(6) Dorsey v. Smithson, 6 Harris & Johnson, 61.

(7) Bailey v. Miller, 5 Iredell's Law, 444; Sturdivant v. Davis, 9 Id. 365, 369; Howland, Ward & Spring v. Dews, R. M. Charlton, 383; Hopkins v. Towns, &c., 4 B. Monroe, 124; Commonwealth v. Richardson, et al. 8 Id. 81, 93; dicta in Brownell v. Curtis, 10 Paige, 212, 218; Dorsey v. Smithson, 6 Harris & Johnson, 61; Osborne v. Moss, 7 Johnson, 161, &c.

(8) Brockman v. Bowman, 1 Hill's Chancery, 338; Peaslee v. Barney, Chipman, 331, 335; see also Simpson v. Simpson et als., 7 Humphreys, 275, 277.

(9) Thompson v. Brown, 4 Johnson's Chancery, 620, 638; Hammond v. Hammond, 2 Bland, 307, 324.

see U. S. Bank v. Burke, 4 Blackford, 141; Jones v. Jones, 1 Bland, 443; a third remedy the creditors are declared, in Drinkwater v. Drinkwater (4 Mass. 354, 360), to possess in the right to sell the property on a judgment against the administrator; but this is denied in Anderson v. Belcher, 1 Hill's So. Car. 246, and in Ralls v. Graham, &c., 4 Monroe, 120, 123; and cannot be true unless such property is considered as assets, because while a judgment against an intestate in his lifetime, ascertains. or creates a debt against his person and all his property, a judgment against an administrator ascertains the debt only as against the assets for which he is responsible; Brodie v. Bickley, 2 Rawle, 431. But with 'regard to the rights and duties of the administrator, when the property is wanted for the payment *of debts, the decisions conflict. The [*44 better opinion is, that at law, such property is not assets from the testator's death, for the profits of which in his hands from that time the administrator is responsible; Backhouse's Administrator v. Jett's Administrator et al., 1 Brockenbrough, 501, 507; or which he can recover as administrator from the fraudulent grantee;(1) or is bound to take possession of or retain ;(2) if, however, the administrator be the fraudulent grantee, or be otherwise in possession of the property, it is liable to the creditors as assets from the time that they claim to treat it so, as it would be were he charged as executor de son tort; (3) in like manner, lands fraudulently conveyed to a stranger are not assets by descent, for which the heir can be made responsible, or which he is entitled to recover;(4) yet if the heir or devisee be the fraudulent grantee, then to the extent to which he has possession of the lands, he may be charged as holding them not in his own right, but as heir or devisee having assets.(5) On the other hand, it is settled in Connecticut, that property fraudulently conveyed is assets, which the administrator is bound to

(1) Orlabar and Harwar, Comberbach, 348; Connell v. Chandler, 13 Texas, 5; Osborne ». Moss, 7 Johnson, 161; Dorsey v. Smithson, 6 Harris & Johnson, 61; Peaslee v. Barney, Chipman, 331; Adm'r of Martin v. Martin, 1 Vermont, 91; Commonwealth v. Richardson et al., 8 B. Monroe, 81, 93; Benjamin v. LeBaron's Administrator, 15 Ohio, 517, 526; Sharp v. Caldwell & Hunter, 7 Humphreys, 415, 416; Coltraine v. Causey, 3 Iredell's Equity, 246; Rhem v. Tull, 13 Iredell's Law, 57 on a statute; Chouteau v. Jones, dicta, 11 Illinois, 318; the administrator's sale being sustained under special circmstances; Shield's Adm'r, &c., v. Anderson, Adm'r, &c., 3 Leigh, 729, and dictum in Babcock r. Booth, 2 Hill's N. Y., 182, 184, apparently contra, but the latter explained and controlled by Dennison v. Ely, 1 Barbour's S. Ct. 612, 624.

(2) Greenlee v. Hay's Administrator, Overton's Tennessee, 300, 304.

(3) Shears v. Rogers, 3 B. & Ad. 362; Greenlee v. Hay's Administrator; Stephens' Administrator v. Barnett's Administrator, 7 Dana, 257, 262; Smith v. Pollard, &c., 4 B. Monroe, 66; Backhouse's Administrator v. Jett's Administrator et al., 1 Brockenbrough, 508.

(4) Ralls v. Graham, &c., 4 Monroe, 120; Harrison, &c., v. Campbell, &c., 6 Dana, 203.

(5) Warren v. Hall, 6 Dana, 450; Lynch v. Sanders, 9 Id. 59.