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the sheriff cannot defeat the right of the claimant to maintain replevin by withholding such possession, but, on the contrary, he himself becomes liable to be sued in replevin if he does not, in a reasonable time after his duty to do so arises, deliver the res to the party to the first action entitled thereto.

The judgment is reversed, and a new trial is ordered.

All concur.

REPLEVIN AGAINST OFFICER.—The general rule is, that if an officer, either by mistake or design, levies on goods, not the property of the defendant named in his writ of execution or attachment, or if the property for any reason is not liable to be taken on the writ, replevin will lie against him at the instance of the injured party, no matter from whose possession the goods were so taken: Extended note to Carpenter v. Innes, 25 Am. St. Rep. 257; extended note to Kellogg v. Churchill, 9 Am. Dec. 105-107. Replevin may be maintained against a sheriff who holds property by virtue of a writ in another action of replevin then pending and undetermined, and also against the plaintiff in such suit, where the plaintiff in the latter suit is not a party to the first: Reiley v. Haynes, 38 Kan. 259; 5 Am. St. Rep. 737. Compare Hagan v. Deuell, 24 Ark. 216; 88 Am. Dec. 769.

CONTEMPT-REPLEVIN OF PROPERTY IN CUSTODY OF LAW.-A defendant in execution is guilty of contempt if he institutes replevin to recover property rightfully levied on by virtue of the writ: Philips v. Harriss, 3 J. J. Marsh. 122; 19 Am. Dec. 166. It is held that the principle that goods so taken are in the custody of the law, and cannot be replevied, applies only between the officer and the defendant from whose possession they are taken: Dunham v. Wyckoff, 3 Wend. 280; 20 Am. Dec. 695, and note. It is well settled that property cannot be placed in the custody of law by an unauthorized levy: Extended note to Kellogg v. Churchill, 9 Am. Dec. 105.

FLUEGEL V. HENSCHEL.

OF

[7 NORTH DAKOTA, 276.] FRAUDULENT CONVEYANCES-KNOWLEDGE GRANTEE.-If a conveyance of real estate is made to one not a creditor of the grantor, and the grantee knows at the time that the grantor intends by such transfer to hinder, delay, or defraud his creditors, the mere consummation of such transfer, even though based upon full consideration, is such a participation in the fraud by the vendee as invalidates the transfer against existing creditors.

FRAUDULENT CONVEYANCES-KNOWLEDGE OF GRANTEE.-In a conveyance of real estate to defraud creditors, knowledge on the part of the grantee of such suspicious facts and circumstances as would put a prudent man on inquiry is equivalent to knowledge of all facts that would have developed the fraudulent intent of the grantor by a reasonable pursuit of such inquiry; but no duty of inquiry devolves upon the grantee unless he is in possession of such suspicious facts or circumstances.

FRAUDULENT CONVEYANCES BETWEEN RELATIVES -PRESUMPTION.-The fact that the vendor and vendee in a conveyance of real estate are relatives does not raise any presumption of fraud in the transaction in favor the creditors of the vendor.

CONVEYANCES-KNOWLEDGE

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FRAUDULENT GRANTEE-FRAUDULENT PAYMENTS.-A grantee of real estate who, before full payment, receives knowledge that the conveyance was fraudulent on the part of his grantor, makes further payments at his peril, even on his note, not yet due, which his grantor holds for the unpaid balance. As to such payments the grantee is regarded as a participant in the fraud, and the conveyance may be set aside pro tanto at the suit of the grantor's creditors.

FRAUDULENT CONVEYANCES-INNOCENT GRANTEE PAYMENTS.-A grantee's conveyance protects him, as against the grantor's creditors, to the extent of all payments innocently made in ignorance of the fraud of his grantor, and if a decree is entered directing the sale of the land to satisfy a judgment against the grantor, it should provide that from the proceeds of the sale the grantee be first reimbursed in full for all payments made by him prior to his knowledge of the grantor's fraud. It is only as to the excess over such payments that the rights of the grantor's creditors are superior to the rights of the grantee.

VENDOR AND PURCHASER-NOTE FOR PURCHASE PRICE PAYMENT.-The execution and delivery of negotiable paper for the purchase price of land, or any part thereof, does not constitute payment as between the grantor and grantee, so long as such paper remains in the hands of the grantor.

M. A. Hildreth, for the appellant.

Benton & Bradley, for the respondent.

277 BARTHOLOMEW, J. The plaintiff, Fluegel, is a judgment creditor of the defendant Frank Henschel. Execution on said judgment having been returned nulla bona, he brought his action to 278 set aside as fraudulent the conveyance of a certain quarter section of land, made by Frank Henschel and Julia Henschel, his wife, to F. W. Froemke. Froemke is a brother to Mrs. Henschel. Crozier was a mere nominal defendant. Nothing was claimed as against him, and he made no appearance. All the allegations of fraud contained in the complaint were put in issue by the joint answer of the other defendants. The trial court found that the conveyance was made by the Henschels with intent on their part to defraud the plaintiff, Fluegel. But the eighth finding of fact was as follows: "That the defendant F. W. Froemke purchased the land described in the fourth finding of fact in good faith, and for a valuable consideration, and without any knowledge whatever of any intent on the part of the defendants Frank Henschel and Julia A. Henschel to delay or defraud any creditors or other persons out of their demands against them, or either of them, and without any knowledge of facts and circumstances sufficient to put a prudent man upon inquiry as to the fact that it was the intention of the said Frank Henschel and Julia A. Henschel, in making

such transfer, to delay and defraud creditors or other persons out of their demands against them, or either of them." Upon this finding, and the conclusion of law that necessarily followed, judgment was entered dismissing the complaint, with costs, From this judgment plaintiff appeals, and the case comes into this court for trial de novo.

Of the findings made, only the eighth is attacked; hence we need only consider the evidence in relation to that one finding. And it will be conceded, because nothing more is claimed, that we need consider the evidence only in its bearing upon two propositions: 1. Did the grantee, Froemke, at the time he made the purchase, have knowledge of the fraudulent intent of the grantors in disposing of the land? It is, we think, the prevailing and correct rule that, where a conveyance is made to one not a creditor, and the grantee knows at the time that the grantor intends by such transfer to hinder, delay, or defraud his creditors, that mere consummation of the transfer under such 279 circumstances, even though based upon full consideration, is such a participation in the fraud by the vendee as will invalidate the transfer against existing creditors: Wood v. Chambers, 20 Tex. 247; 70 Am. Dec. 382; Craig v. Zimmerman, 87 Mo. 475; 56 Am. Rep. 466; Chapel v. Clapp, 29 Iowa, 191; Liddle v. Allen, 90 Iowa, 738; Biddinger v. Wiland, 67 Md. 359; Smith v. Collins, 94 Ala. 394; Metropolitan Bank v. Durant, 22 N. J. Eq. 35; Hathaway v. Brown, 18 Minn. 414; Hough v. Dickinson, 58 Mich. 89; Kansas Moline Plow Co. v. Sherman, 3 Oklahoma, 204. And 2. Did the grantee, at the time of the transfer, have knowledge of such facts and circumstances as would put a prudent man upon inquiry, and which inquiry, if reasonably pursued, would have developed the fraudulent intent of the grantor? In law, knowledge of such suspicious facts or circumstances is equivalent to knowledge of whatever might have been learned by a reasonable pursuit of the inquiry suggested: Jones v. Hetherinton, 45 Iowa, 681; Rindskopf v. Myers, 87 Wis. 80; Dyer v. Taylor, 50 Ark. 314; Holliday case, 27 Fed. Rep. 830; Dodd v. Gaines, 82 Tex. 429; Eureka Iron etc. Works v. Bresnahan, 66 Mich. 489; Hanchett v. Kimbark, 118 Ill. 121. But there is great danger of pressing this rule too far. The law casts upon the vendee no duty to inquire into the motives or circumstances of his vendor unless he is in possession of such suspicions, facts, or circumstances: State v. Merritt, 70 Mo. 276; Baker v. Bliss, 39 N. Y. 70; Stearns v. Gage, 79 N. Y. 102; Woodworth v. Paige, 5 Ohio St. 70; Tuteur v. Chase, 66 Miss. 476; 14 Am. St. Rep.

577; Kemmerer v. Tool, 78 Pa. St. 147. In this case the grantee testifies that he had no knowledge of any fraudulent intent upon the part of the grantor; that he had no knowledge that the grantor was indebted in any sum whatever except the sum of eight hundred dollars, which was secured by a mortgage upon the premises purchased, and which the grantee assumed; and that he had no knowledge of any fact or circumstance that led him to believe or suspicion that the grantors had any fraudulent intent in making the transfer; that 280 the consideration paid (two thousand five hundred dollars) was the fair value of the premises, and that it was paid by assuming the mortgage of eight hundred dollars, and paying four hundred dollars in cash, and two promissory notes, one for five hundred dollars and one for eight hundred dollars, executed by the grantee to the grantor. There is no direct testimony tending to contradict the grantee in any manner whatever, but appellant claims that certain admitted facts show that he had sufficient knowledge to arouse his suspicions, and put him upon inquiry. The first circumstance seized upon by appellant is the fact that the grantor and grantee were brothers in law. But the fact that the vendee and vendor are relatives should not, in our judgment, raise any presumption of fraud in the transaction, and this is the holding of the courts: Blish v. Collins, 68 Mich. 542; Fraser v. Passage, 63 Mich. 551; Tompkins v. Nicols, 53 Ala. 197; Steele v. Ward, 25 Iowa, 535; Cooper v. Martin Brown Co., 78 Tex. 219. It is true that it is held in some jurisdictions that, where a husband conveys to a wife, and the transfer is attacked by creditors, the burden of proof shifts, and the wife is held to show the bona fides of the transaction (Hooser v. Hunt, 65 Wis. 71; Rcese v. Shell, 95 Ga. 749), and in one case-Satterwhite v. Hicks, Busb. 105, 57 Am. Dec. 577-this rule was applied when the parties were brothers in law. The application of this rule would, however, make no difference in our decision of this case.

It also appears that after the lis pendens in this case was filed, but before the service of summons upon him, Froemke transferred the land to William Henschel, a brother to Frank Henschel. This was nearly a year after Froemke purchased; but we see nothing in this fact that throws any light upon the question of Froemke's knowledge at the time he purchased. This last transfer seems to have been in the usual course of business. Froemke bought the land on speculation, and sold it at an advance of five hundred dollars. He testifies that at the time he

sold it he knew nothing of the lis pendens, or of the commencement of this action.

Another circumstance upon which appellant places much 281 reliance is the fact that there was a discrepancy between the date of the notes and the deed on one hand and the acknowledgment of the deed on the other, while the evidence clearly shows that the papers were all drawn, acknowledged, delivered, and the cash payment made at the same time and place. The original action upon which plaintiff obtained judgment against Henschel was commenced on Monday, February 24, 1896. On that date the summons was served upon Henschel by leaving the same at his residence. The evidence shows that on February 23d Henschel and his wife had driven from their home across the country, about thirty miles, to Mrs. Henschel's father's home. This was in the immediate vicinity of Froemke's residence. On Wednesday, the twenty-sixth day of February, Froemke and the Henschels went to an attorney's office, where the notes were drawn and executed, and the deeds drawn and acknowledged, and the cash payment made. The notes and deeds were dated Feb. ruary 24th, while the acknowledgment was dated February 26th. It is the theory of appellant that Henschel had learned in some manner of the commencement of the action, and that he had the papers dated back in order that they might appear to antedate the bringing of the suit. We think it a sufficient answer to this to state that there is no evidence whatever to show that Henshel had any such knowledge. He swears he had not. The deed did not in fact antedate the action, while it might just as well have done so had there been any ulterior purpose in the matter. All the parties testify that nothing was delivered, and no cash paid, until the 26th; and the mere fact of antedating the deed would be a subterfuge so useless that we cannot presume the most ignorant would have recourse to it. Moreover, it is established that this transfer had been arranged weeks before, and everything settled except the amount of the cash payment. On February 14th, Froemke wrote Henschel, saying, in effect, that he found that he could make the cash payment larger than he thought when they talked, and requesting Henschel to come over soon, as he was anxious to close the matter up. This letter was 282 introduced in evidence, and the envelope in which it was mailed. Under these circumstances, even if Froemke knew of the discrepancy-which is very doubtful under the testimony-we do not think the fact is of such a suspicious character that any duty of inquiry was thrown upon the grantee. We are

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