ances considered in the last section, though they may resemble them in form, are conveyances made by a debtor, apparently actual, but really subject to a secret lien, charge or trust in favor of the grantor. Such conveyances cannot avail as against the debtor's creditors. Knowledge or participation by the grantee in the grantor's purpose, though usual, is not indispensable to the invalidity of the transfer.2

§ 957. Voluntary conveyances.- The form of transfer, however, which is most frequently assailed by creditors is that which the law terms a "voluntary conveyance." By the term "voluntary" as here used is not meant such a conveyance only as is without any consideration whatever, but any conveyance which is not supported by an actual, legal consideration bearing some fair proportion to the value of the property transferred. The law, of course, in many cases permits a man to dispose of his property for an inadequate consideration, or even without any consideration at all; but he cannot do this at the

Wolf v. McGugin, 37 W. Va. 552, 16 S. E. R. 797; Thompson v. Johnson, 55 Minn. 515, 57 N. W. R. 223.

1 Ladd v. Wiggin, 35 N. H. 421, 69 Am. Dec. 551; Winkley v. Hill, 9 N. H. 31, 31 Am. Dec. 215; McCulloch v. Hutchinson, 7 Watts (Pa.), 434, 32 Am. Dec. 776; Chenery v. Palmer, 6 Cal. 119, 65 Am. Dec. 493; Mackason's Appeal, 42 Pa. St. 330, 82 Am. Dec. 517.

untary as to the residue. Thus in Snyder v. Partridge, 138 Ill. 173, 29 N. E. R. 851, 32 Am. St. R. 130, it is said: "Where the consideration paid is small in comparison with the real value of the property, and where the circumstances of the case are extremely unfavorable to the fairness of the transaction, though not sufficient to establish absolute fraud, the conveyance will be regarded as a

2 Lyons v. Leahy, 15 Oreg. 8, 3 Am. voluntary one to the extent of the St. R. 133, 13 Pac. R. 643.

difference between the actual consideration and the real value of the property, and to that extent will be treated as fraudulent and void as to existing creditors. Boyd v. Dunlap, 1 Johns. (N. Y.) Ch. 478; Keeder v. Murphy, 43 Iowa, 413; Worthington v. Bullitt, 6 Md. 172; Strong v. Lawrence, 58 Iowa, 55, 12 N. W. R. 74; Norton v. Norton, 5 Cush. (Mass.) 524; Church v. Chapin, 35 Vt. 223; Robinson v. Stewart, 10 N. Y. 189."

[SS 958, 959. expense of his creditors. He must be just before he is generous. He may therefore give away part of his property if he retains ample for the actual satisfaction of his debts, but he will not be permitted to dispose of his property without some fair consideration if he is insolvent, or if such a disposition will leave him so.1

§ 958.

Intention of parties.- The grantee's intention in such cases is immaterial. As he parts with no consideration of value he is entitled to no protection as against creditors.2 Neither is the grantor's actual intention conclusive. If he really intends to defraud, the case of course is clear; but even though his intention was not fraudulent the conveyance must be deemed invalid if its effect is to hinder, delay or defeat creditors.3

$ 959. Relations of parties.-The relations of the parties are material, though not conclusive. The law permits and encourages a man to make fair and reasonable provisions for the support of his wife and family, and it. will doubtless look upon such transactions with a more lenient eye than upon conveyances to a mere stranger; but even as to these more favored transfers it is settled that they can only be sustained if they are reasonable in amount and made at a time when they will not interfere with the claims of existing creditors.5

1 The amount retained must be sufficient to actually satisfy, if prosecuted within a reasonable time, the existing indebtedness of the seller. A mere theoretical or probable sufficiency will not do, nor will the absence of a wrongful motive relieve the case of its constructively fraudulent effect. Marmon v. Harwood, 124 Ill. 104, 16 N. E. R. 236, 7 Am. St. R. 345; Driggs v. Norwood, 50 Ark. 42, 6 S. W. R. 323, 7 Am. St. R. 78; Patten v. Casey, 57 Mo. 118; Potter v. McDowell, 31 Mo. 62.

Dec. 271; Marmon v. Harwood, 124
Ill. 104, 16 N. E. R. 236, 7 Am. St. R.
345; Lyons v. Leahy, 15 Oreg. 8, 3
Am. St. R. 133, 13 Pac. R. 643.
3 Marmon v. Harwood, supra.
4 See Lloyd v. Fulton, 91 U. S. 479.

5 Voluntary conveyance to wife or child is fraudulent as to existing creditors, if made when the donor is in embarrassed financial circumstances, even though he retains estate nominally equal in value to, or more than equal to, his indebtedness, when the property retained proves 2 Lee v. Figg, 37 Cal. 328, 99 Am. insufficient to discharge all his lia

§ 960. Retention of possession by seller as badge of fraud. The statute of 13th Elizabeth, as has been seen,' did not extend to purchasers, nor that of 27th Elizabeth to personal property, "yet," it has been said,2 "both are embraced in the spirit of those acts respectively," and it is certain that from the decision in Twyne's Case3 (1585) to the present time, sales of personal property made with the intent to hinder, delay or defraud creditors or purchasers have been deemed to be within the forbidden classes. The retention of possession by the seller after an absolute sale was there considered to be one of "the signs and marks of fraud," and so it has continued since, though as to its conclusiveness the courts have not been able to agree. In some of the States, following the early English and Fed

bilities. Marmon v. Harwood, 124 Ill. 104, 7 Am. St. R. 345, 16 N. E. R. 236.

1 See ante, § 944.

St. R. 868, citing Clow v. Woods, 5
Serg. & R. 275, 9 Am. Dec. 346; Babb
v. Celmson, 10 Serg. & R. 419, 13 Am.
Dec. 684; Streeper v. Eckart, 2 Whart.

2 In Fleming v. Townsend (1849), 6 302, 30 Am. Dec. 258; Eagle v. EichelGa. 103, 50 Am. Dec. 318.

berger, 6 Watts, 29, 31 Am. Dec. 449;

33 Coke, 80, 1 Smith's Lead. Cas. 1, Young v. McClure, 2 Watts & S. 147; Adams' Cas. on Sales, 831.

4 Thus, in Pennsylvania there is no statute and the seller's retention of possession is conclusive evidence of fraud. To avoid such a result the purchaser must take possession of the goods-such possession as is reasonable and possible under the circumstances, in determining which "the character of the property, the use to be made of it, the nature and object of the transaction, the position of the parties, and the usages of the trade or business, are all to be considered in deciding the sufficiency of the possession taken by the purchaser." Stephens v. Gifford (1890), 137 Pa. St. 219, 20 Atl. R. 542, 21 Am.

5 For the early English rule, see Edwards v. Harben, 2 T. R. 587, 1 Rev. R. 548.

For the later rule: Martindale v.

Barr v. Reitz, 53 Pa. St. 256; Crawford v. Davis, 99 Pa. St. 576; Miller v. Browarsky, 130 Pa. St. 372, 18 Atl R. 643; Hugus v. Robinson, 24 Pa. St. 9; McMarlan v. English, 74 Pa. St. 296; Evans v. Scott, 89 Pa. St. 136; McClure v. Forney, 107 Pa. St. 414; Renninger v. Spatz, 128 Pa. St. 524, 18 Atl. R. 405, 15 Am. St. R. 692; Linton v. Butz, 7 Pa. St. 89, 47 Am. Dec. 501; Bond v. Bunting, 78 Pa. St. 210. See also Brawn v. Keller, 43 Pa. St. 104, 82 Am. Dec. 554; Born v. Shaw, 29 Pa. St. 288, 72 Am. Dec. 633; Forsyth v. Mathews, 14 Pa. St. 100, 53 Am. Dec. 522.

In Illinois, also, retention of possession is fraud per se unless consistBooth, 3 B. & Ad. 498; Lindon v. Sharp, 6 M. & G. 895; Alton v. Harrison, L. R. 4 Ch. 622.

eral1 rule, since abandoned, such retention of possession is regarded as conclusive evidence of fraud, while in most it is but prima facie only, and the presumption may be rebutted by evidence to the contrary.❜

Regulated by statute in some States.- In

several of the States, as has been seen,' the matter is now