FRAUD AND FRAUDULENT CONVEYANCES

Unless it appears that grantee acted from corrupt motives, the fact that he withheld a deed from record for a long time is not material. Hedrick v. Gregg. 462

If, however, the conveyance at the time was made with the intent to defraud the creditors of the grantor, a subsequent creditor may avail himself of this fraudulent character of the conveyance and have it set aside. Ib. Declarations by grantor in deed of conveyance, made after the conveyance and in the absence of the grantee, are not admissible evidence in derogation of the title conveyed in the deed, unless collusion or conspiracy between the parties, that the deed was executed for fraudulent purposes, is shown.

Ib.

In a proceeding in aid of execution to reach choses in action based on a transfer of property, any creditor of the transferee may intervene to have such transfer set aside on the ground of fraud; it is not necessary in such case that the intervening party be a judgment creditor. Carter Cattle Co. v. McGillin. 146

An existing creditor at the time of the conveyance, a voluntary conveyance of property of value, and an unsustained burden of proof to show grantor's solvency at the time of making such conveyance, are elements which go to make up a conveyance constructive fraudulent and within the class of cases covered by sec. 6344, Rev. Stat., authorizing ac

tion by creditors to declare void acts of an insolvent debtor. Jones V. Leeds. 173

A party bound by a contract upon which he may become liable for the payment of money, although his liability be contingent, is a debtor within the meaning of the statute avoiding all grants made to hinder or delay creditors. Ib.

When there is no actual intent to defraud, a valuable consideration, though inadequate, will sustain the transfer in a court of law. Ib.

Where a conveyance by its terms operates to hinder, delay, or defraud creditors, the intent to do so is imputed to the parties, and no evidence of intention can change this presumption.

See also EVIDENCE.

GAMING

Ib.

Where the contract is a mere form to evade the law, and there is no bona fide sale or purchase, it is the duty of the jury to tear away the disguises and treat the transaction as it is. Goodhart v. Rastert.

40

To constitute a gambling transaction, both the parties to the contract must intend to gamble. Ib.

The sole test by which the legality of a sale (relating to stocks and bonds in case at bar) is determined is: was the sale bona fide? Did the parties really contemplate a sale on the one side and a purchase on the other? If they did the sale is legal, without regard to the question whether the purchaser bought for speculation or the seller originally purchased the property for the same purpose. Ib.

GAS COMPANIES

See MUNICIPAL CORPORATIONS.

GUARDIAN AND WARD

A guardian ad litem in an action of tort cannot have an allowance made to him for attorney's fees to be taxed in the costs and paid by the opposing unsuccessful party. Worther v. Ruehrwein. 116

HABEAS CORPUS

See IMPRISONMENT.

HAMLETS

are

Where two petitions filed with the township trustees upon the same day, though at different hours, each asking that an election be held upon the question of establishing a hamlet within the boundaries of the township, the trustees have discretionary power to determine which petition they will direct a vote upon, and, in the absence of fraud or bad faith, their action in directing a vote upon the petition last filed is not invalid. Lawrence v. Mitchell. 265

The provisions of secs. 1561a, 1561b and 1561c, Rev. Stat., authorizing the establishment of hamlets under the supervision of township trustees, are not unconstitutional, as being an unauthorized delegation of legislative power. Ib.

Where an election and the proceedings preliminary thereto, under secs. 1561a, 1561b, and 1561c, Rev. Stat., for the establishment of hamlets are subject to a review, it cannot be said that such election will work irreparable injury to the inhabitants, or warrant an injunction to restrain the election.

Ib.

sentence and would be illegal. Sec. 7327, Rev. Stat. Mullaney, Ex parte.

419

And it is the duty of the auditor, in a proceeding under sec. 1028, Rev. Stat., when it is made to appear that a person imprisoned until a fine and costs are paid is unable to pay, to at once discharge such person; and he is not excused from such duty by a finding "that the petitioner had friends or relations who are able and should be willing to help him in the emergency." Ib.

Where, upon conviction of assault, the judgment of the court is that accused "pay a fine of $5.00 to the state of Ohio and the costs of this proceeding." and it is made to appear that accused has no means to pay the fine, he is entitled to be discharged at once. The public prosecutor, nor any other official has no authority to supplement such judg ment by an order of imprisonment.

Ib.

Upon such a finding the person so imprisoned is entitled, under art. 1, sec. 8 of the constitution of Ohio, to the writ of habeas corpus. Mullaney, Ex parte. 419

The probate court, in such cases, has jurisdiction to entertain application for and to issue the writ of habeas corpus. Ib.

The judgment upon one application for a writ of habeas corpus, refusing to discharge the prisoner, is not a bar to another or successive applications based upon the same facts. Ib.

A mortgagee, in whose mortgage

there is an exception of property conveyed as above stated, is not estopped by such exception from asserting his lien as prior to that of the deed of settlement referred to and held invalid. Case v. Hewitt. 365

A deed of trust for the payment of creditors named, the balance, if any, of the proceeds of the sale, of the property to go to grantee, operates, under Ohio laws, as an assignment for the benefit of all creditors pro rata.

Ib.

A deed of assignment for creditors is not subject to internal revenue tax, as such a transfer is in no sense a sale, merely conveying to a trustee the title to the property to be administered under the direction of the court. Mills, In re. 315

Section 6343, Rev. Stat., as amended 39 O. L., 290 and 291 is constitutional. Summers, In re. 301

A chattel mortgage given by an insolvent person to a bank to secure a certain sum of money, within ninety days before making an as

signment for creditors, a part of which sum was an old debt owed by the insolvent to the bank, and a part was for money advanced by the bank to the insolvent at the time of the giving of the mortgage, is void as to the pre-existing indebtedness and valid as to the money so advanced. Ib.

as

Section 6344, Rev. Stat., amended 39 O. L., 290 and 291, providing that any creditor as to whom any of the acts in sec. 6343 are void may commence an action to have such acts declared void, and any assignee shall bring suit to recover all property so sold. conveyed, mortgaged or assigned, or in case of his failure to commence such suit, upon notice to do so, by a creditor, such creditor may himself commence such suit, is constitutional. Ib.

A preference given by an insolvent debtor to a creditor within four months of the filing of a petition in bankruptcy can not be avoided, unless it appear that at the time of receiving the preference the creditor had knowledge of some fact or facts calculated to produce in the mind of an ordinary intelligent man a belief that the debtor was insolvent. Taft v. Bank. 405

Constructive notice is sufficient ground for such a belief; but the circumstances upon which notice is predicated must be of a character to induce belief as distinguished from suspicion. Ib.

See also CORPORATIONS.

INSURANCE--FIRE

A party insured in a mutual fire association organized under secs. 3686, et seq., Rev. Stat., becomes a member by signing the constitution and by-laws and is bound to know what its rules and regulations are while in old line or stock companies a policy holder is charged with notice of only such as are brought to his notice in the application or policy. Crandall v. Insurance Assn. 711

No recovery for a loss can be had on a fire insurance policy issued to a member of a mutual insurance company organized under secs. 3686 to 3690, Rev. Stat.. where he has "refused or neglected", to pay the "necessary assessments" thereon within the time limited by its laws, unless the condition as to the time of payment thereof has been waived or the

INSURANCE-Continued.

time extended by the officers of the association. Ib.

Unless rebutted by proof to the contrary an assessment levied at a meeting of the board of directors and officers of a mutual insurance company for payment of losses and incidentals, will be presumed to be "necessary," within the meaning of that term as used in the policy or by-laws. Ib. Where a member of such an association received notice from the secretary of the company directing him to pay the assessment levied to the collector, naming him, when he should call at his (assured's) house, the expiration of that time while waiting for the collector to call would not avoid the policy. Ib.

And where the collector called, and informed assured that he would not be required to pay the assessment at once, if assured had reason, knowing the rules of the company, to believe that the collector had authority to extend the time, his failure to pay as first described would not avoid the policy.

Ib.

A letter from an insurance company to assured, upon receipt of notice of loss, demanding a compliance with the conditions of the policy in regard to notice of loss, the amount, etc., and reciting that "in case differences shall arise" touching such loss, the matter shall be submitted to appraisers, does not amount to a demand for appraisement. Dun & Co. v. Insurance Co. 667

The damages fixed by appraisers and returned in their award are conclusive and cannot be opened up upon submission to a jury in an action for loss upon a fire policy. Ib.

An insurance company is entiItled to the sixty days limitation on bringing suits for loss upon a policy of insurance, to investigate the claim, and waiver of proof of loss does not make the claim due at once unless the company notifies assured that it will not pay in any event.

to investigate it, and he assisted in selecting two appraisers to estimate the loss, and the appraisers made a report thereof, and the adjuster and assured agreed as to the loss on other property under the policy, may be considered in determining whether or not proofs of loss were waived. Ib.

An adjuster, employed by an insurance company to act for it in settling a loss, is the agent of the company and all that he does within the scope and line of his employment and duties binds the company.

Ib.

The requirement of preliminary proofs of loss is a formal condition, inserted in the policy of insurance solely for the benefit of the insurer, and it may waive such proofs in whole or in part, either by direct action of the insurer, or his general agent by virtue of his authority and such waiver may be express or implied. Ib.

An insurance company must not, by its acts or the acts of its authorized agents, within the scope of their duties and authority, do anything to throw the insured off of his guard, and cause him to believe, as any reasonable man under similar circumstances would believe, that proofs of loss are not wanted by the company or they will be held to have waived such proofs. Ib.

In an action by a partnership to recover insurance the burden is on the plaintiff to prove, that it is a partnership doing business in Ohio; that at the time of the loss and also when the policy was given the property belonged to the partnership; that the same was injured or destroyed by fire as claimed, and the amount of loss or injury; that plaintiff performed all the conditions of said policy, or that the defendant waived such as were not performed by plaintiff sixty days before bringing suit. Ib.

If an insurance company, by its adjuster, proceeds to investigate a loss on its merits, and by what it does causes the insured to believe, and a man of ordinary judgment under the circumstances would have so believed, that it was only the amount of loss in dispute, and nothing else, that will amount to a waiv. er of proofs of loss. Ib.

Mere silence on the part of an insurance company,or sending agents to make inquiry or investigation

a

An insurance company cannot recall, or reclaim a waiver of proofs of loss and demand or insist upon such proofs. Ib. A notice of loss under a policy of insurance immediately after fire, or as soon as it can be done with reasonable diligence, to the agent of the company at the place where the fire occurred, or with such diligence causing notice of the loss to be brought to the knowledge of the company, is a sufficient compliance with the condition requiring notice of loss to be given to the company.

INSURANCE-LIFE

Ib.

In an action against a life insurance company, under a policy which had lapsed and had been reinstated upon health certificates by assured, which were claimed to be false by the insurance company, an interrogatory as to whether assured "had any illness affecting his health between the times when he was examined by the physician of the defendant association for admission to membership therein and the time he signed * *health certificates," without including a definition of "sound health," which, under the facts stated in preceding paragraphs, was an important question, is objectionable and was properly refused; and the same rule is applicate to an interrogatory regarding ailments. Ohio Mut. Life Assn. V. Draddy. 591

*

It is the policy of the law to construe health certificates made to life insurance companies for reinstatement under lapsed policies, favorably to the assured, and where there is any doubt as to the proper construction that doubt should be resolved in favor of the applicant. Ib.

Where assured, in making such certificates, certified that "I have not now, and have not since said examination, any illness or injury, nor any medical treatment, or any ailment affecting my health, so far as I know," to render such certificate false by reason of a failure to set forth illness, injury, or medical at

Interpleader.

tendance, it must appear that assured, when he signed the certificate knew that such injury, illness or ailment affected his sound health, or that the medical attendance was with respect to any injury, illness or ailment affecting his sound health.

Ib.

A failure, in making such certificates, to set forth the fact that assured had suffered from a stomach disorder, of a more or less serious nature, does not avoid the policy where the evidence fails to show that assured was told by any of his physicians that the malady was serious, or that he knew he was being treated for serious trouble, and it appears that he was not confined to his bed, but was able to pursue his ordinary vocations. Ib.

An assured, in making health certificates for reinstatement under a lapsed policy of life insurance, not required to set forth an illness or injury, a mere indisposition, for innot stance, which did affect his sound health, as above defined; and the same rule is applicable to statements regarding medical attendance, which, in order to be required to be set forth, must have been with respect to an illness, injury or ailment affecting sound health.

Ib.

In life insurance "sound health"

. means that state of health which is free from disease or ailment that seriously affects the general healthfulness of the system; not a mere indisposition. Ib.

INSURANCE POLICY

See PLEADING.

INTEREST

Interest upon interest, or compounding interest, as a general rule, is against the policy of the law. But interest may be allowed upon interest, as where there is a settlement of accounts btween the parties after interest has become due, or there has been an agreement for that purpose after the execution of the original • contract, or upon agreed rests. Goodhart v. Rastert. 40

INTERFLEADER

The true province of a bill of interpleader under the equity prac tice, is to set forth substantially the general nature of the claims asserted by two parties on which each