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to accomplish the purposes of the law is usually a question of fact for the jury.
Question of sufficiency for jury, the farm for a six weeks' visit, she Illustrations.- In McKibbin v. Mar- requested one of her former employtin (1870), 64 Pa. St. 352, 3 Am. R. 588, ees to look after the hay for her. two sons who were carrying on a There was a custom in that vicinity hotel, in which their father lived for stock-owners, when they purwith them, dissolved their partner- chased hay, to take their stock to ship, and sold their interest in the fur- the stacks and feed the bay directly niture and business to their father. from the stack. Held, that the quesThe dissolution of their partnership tion whether or not there was an imand the fact of the sale were pub mediate delivery, followed by an lished in two leading newspapers. actual and continued change of posThe sons continued to live in the session, was for the jury. In Thomphouse and one of them acted as su- son Mfg. Co. v. Smith, 67 N. H. 409, perintendent. Afterwards the fur- 29 Atl. R. 405, the vendee examined niture was seized by creditors of the and accepted the engine, and took sons. Held, that the sufficiency of with him such parts as were liable the change of possession was for the to be stolen or lost, such as gaugejury to determine. In Porter v. cocks, etc. Held, that the question Bucher, 98 Cal. 454, 33 Pac. R. 335, whether or not there was a sufficient plaintiff and her husband lived to change of possession was for the gether on a farm on which husband jury. In Tennent-Stribling Shoe Co. bad filed a declaration of homestead. v. Rudy (1893), 53 Mo. App. 196, R., She owned about one hundred and after negotiation with H., made on fifty head of cattle and horses which May 10th an invoice of his stock of were kept on this farm, and pur- goods, and on May 11th made a bill chased from her husband about one of sale of the stock to H, at the inhundred and thirty tons of hay, which voice price of $2,232.69. H. in payhad been raised on the farm and ment therefor surrendered to R. stacked in corrals thereon; these cor- notes held against him amounting rals had been used for several years to $700, and assumed to pay other for the purpose of stacking hay in indebtedness of R. amounting to them in summer and feeding it di- the remainder of the purchase price. rectly from the stack to stock in On account of other business H. was winter. In the previous year the unable to take charge of the store plaintiff had bought from her hus- in person, but he took his book keeper band hay stacked in these corrals out of his cigar establishment and and had fed it therefrom. In the set him at work in the store, and present sale, she and he had gone to was himself there frequently from the stacks, estimated the quantity the date of the purchase until the of hay, agreed on the price, he orally goods were attached, eight days later. delivered possession, and she made a Immediately after the sale was compart payment, closed the gates of the pleted H. notified the creditors whose corrals, and later paid the remainder debts he had assumed to pay that he of the price to him. When she left had purchased the stock and as
$ 968. Doubts resolved in favor of creditor or purchaser. And where the question of the sufficiency is in doubt, the doubt, it is said, ought to be solved in favor of the creditor or
sumed their debts and that he had re of possession will not be set aside, al. plenished the stock with new goods. though the case is on the borderH. afterwards paid these debts. H. line. In White v. Pease (1897), 15 retained R.'s clerk in his employ, Utah, 170, 49 Pac. R. 416, W. received and neglected to destroy R.'s sign a bill of sale for a quantity of grain which was painted on the body of in a locality remote from transportathe building, and also failed to tion and from place where W. lived. change the name on the delivery Whether delivery was made within wagon. Held, the sufficiency of the a reasonable time, when W. drove change of possession was for the forty-five miles in order to obtain jury. In Sharpless Bros. v. Derr teams with which to remove the (1895), 62 Mo. App. 359; S. C., 1 Mo. grain, is a question of fact for the App. R. 529, Phil. Derr was indebted jury. In McGuire v. West (1897), – to his brother Ed. They went to an Ky. App. — 43 S. W. R. 458, some attorney and had a bill of sale of the hogs had belonged to W.'s employee, stock in “Derr's Dry Goods Store," who kept them at W.'s logging camp, of which P. was proprietor, drawn and allowed them to follow cattle up, and the price agreed on, which owned and fed by W. W. purchased price was to apply on P.'s debt to E. the hogs of his employee, the latter P. then returned to the store and in- to be credited on an obligation he formed the clerks of the sale, and in owed W. The hogs were to remain a few minutes E. returned and told at the camp and feed after the cattle the clerks of the sale and hired them awhile before being weighed. Durto act as his clerks. E. also hired ing this interval an execution was P. to act as his manager. E. re- levied upon them by M. Held, that mained in the store that day and the question of sufficiency of change took charge of affairs, wrote letters of possession was one for the jury. to other creditors informing them of In Brown v. Harmon (1898), 29 App. his purchase, had notices of the sale Div. 31, 51 N. Y. Supp. 820, the bill of published in the several papers of the sale was executed by the vendor at a town (one daily and two weeklies), time when he was being pressed by and he and all others at work in the his creditors. It covered all his goods, store announced the sale to all per- wares, merchandise and store fixtsons coming in. Insurance policies ures, and was delivered to the vendee and bank accounts were also changed on Friday evening, and at the same to E.'s name. No change was made time the vendor, after locking the in the sign “ Derr's Dry Goods Store," doors, handed the key to the vendee. since that was conceived by P. and Next morning the vendee handed E. to be correctly descriptive of the the vendor the key, and told him to new state of affairs. Next day E. re- go to the store and open it and sell turned to his home and left P. in the goods that day, and close the store charge as manager. Held, that a ver- at night. On that day the vendor dict of actual and continued change sold six or seven dollars' worth of
subsequent purchaser, and against the first purchaser, because it was within the latter's power to make the matter clear.!
$ 969. Who are creditors. The statute of 13th Elizabeth aimed at the protection of “creditors and others” in “their just and lawful actions, suits, debts, accounts, damages, penalties,” etc., and it becomes material to ascertain who are the creditors and others” who are protected by this and the various enactments copied after it. And first it may be noticed that, in this as in other respects, the construction which has been put upon these acts is a liberal one, designed to further their beneficent purposes, and has not “stuck in the bark.”
$ 970. — Nature of demand—Contract or tort-In judg. ment.— In respect of the nature of their demands, therefore, it is the settled rule that all those are creditors who have claims enforceable by legal process, whether such claims are based upon express or implied contract, or not. One entitled to re
goods. On the next Monday the shall be protected, and therefore all vendor again went to the store, put persons having such interests must some posters in the window, adver- be included in the word .creditors.'” tising an auction sale of the goods. And in Anderson v. Anderson, 64 and boxed up some of the goods Ala. 403, the court say: “The term which B., the vendee, did not wish creditors, as employed by the statute, to sell. The signs upon the building has been construed liberally, and not and the awning were not changed. in a narrow, strict or technical sense. Vendee was vendor's mother-in-law Whoever has a right, claim or deand lived in his family. Held, the mand founded on contract, whether question of change of possession was contingent or absolute, for the perone for the jury, and a directed ver- formance of a duty, or for the paydict for the vendee was set aside. ment of damages if the contract
1 Anderson v. Brenneman (1880), 41 should not be fully performed, has Mich. 198.
been regarded as a creditor within 2 Thus in Bongard v. Block, 81 Ill. the meaning of the statute, against 186, 25 Am. R. 276, the court say that whom a voluntary conveyance will the word “creditors" is not “used not be supported, though no breach in the strict technical sense, but in- of the contract, furnishing a cause cludes all parties who have demands, of action, may occur until after the accounts, interests or causes of ac- execution of the conveyance. Bibb tion, for which they might recover v. Freeman, 59 Ala. 612; Foote v. any debt, damages, penalty or for- Cobb, 18 Ala. 585; Gannard v. Es. feiture; that such were the interests lava, 20 Ala. 732." which the statute expressly says
cover damages for the commission of a tort is no less a creditor than he who is entitled to damages for the breach of contract.! Neither is it necessary that the claim, whether in contract or in tort, shall have matured or been in action at the time when the fraudulent transfer was consummated: if the claim existed then it is sufficient, though it must usually be reduced to judgment before it can be made the actual basis of attack.
1 Claims for the recovery of dam. 9 S. W. R. 668; McVeigh v. Ritenour, ages for torts are, before judgment, 40 Ohio St. 107; Jackson v. Myers, 18 necessarily uncertain and unliqui- Johns. (N. Y.) 425. Even before suit dated, but by the weight of author- brought or judgment obtained. ity the claimants are entitled to Shean v. Shay, supra; Corder v. protection, as creditors, even before Williams, supra. suit or judgment, against convey- The dictum of Judge Cooley in Hill ances intended to defeat them. Bon- v. Bowman, 35 Mich. 191, contra, is gard v. Block, 81 Ill. 186, 25 Am. R. said to be opposed to the weight of 276; Walradt v. Brown, 1 Gilm. (III.) authority, and is weakened if not de 397, 41 Am. Dec. 190; Greer v. Wright, stroyed by Schaible v. Ardner, 98 6 Gratt. (Va.) 154, 52 Am. Dec. 111; Mich. 70, 56 N. W. R. 1105. But in Lowry v. Pinson, ? Bailey, L. (S. C.) Connecticut and Vermont “credit324, 23 Am. Dec, 140; Philbrick v. ors "are those only whose claims are O'Connor, 15 Oreg. 15, 13 Pac. R. 612, based upon contract. Fox v. Hills, 1 3 Am. St. R. 139; Shean v. Shay, 42 Conn. 294; Fowler v. Frisbie, 3 Conn. Ind. 375, 13 Am. R. 366.
320; Beach v. Boynton, 26 Vt. 725; As long ago as Twyne's Case, 3 Green v. Adams, 59 Vt. 602, 59 Am. Coke, 80, it was said that “this act R. 761, 10 Atl. R. 742. doth not extend only to creditors, 2 As to torts, Shean v. Shay, 42 Ind. but to all others who had cause of 375, 13 Am. R. 366; Corder v. Willaction, or suit, or any penalty, or for- iams, 40 Iowa, 582. Contra, Hill v. feiture, etc.” That it applies to torts, Bowman, 35 Mich. 191, dictum. But see also: Corder v. Williams, 40 Iowa, see Schaible v. Ardner, 98 Mich. 70, 582; Weir v. Day, 57 Iowa, 84; Hoff- 56 N. W. R. 1105. man v. Junk, 51 Wis. 613; Harris v. In case of claims based on contract Harris, 23 Gratt. (Va.) 737; Cooke v. the right of attack dates from the Cooke, 43 Md. 522; Welde v. Scotten, time of making the contract. Hamet 59 Md. 72; Westmoreland v. Powell, v. Dundass, 4 Pa. St. 178; Howe v. 59 Ga. 256; Simons v. Busby, 119 Ind. Ward, 4 Me. 195; Cook v. Johnson, 12 13, 21 N. E. R. 451; Lyne v. Wann, 72 N. J. Eq. 51, 72 Am. Dec. 381; Stone Ala. 43; Cole v. Terrell, 71 Tex. 549, v. Myers, 9 Minn. 303, 86 Am. Dec.
3 Unless changed by statute, as in by judgment, levy or otherwise, have Alabama, the rule is practically uni- acquired a lien upon the property inversal that before a creditor can volved. Wait on Fraud. Convey., commence proceedings to set aside $73; 2 Bigelow on Fraud, 136. the fraudulent conveyance he must,
$971. Absolute or conditional.- Neither is it necessary that the claim, at the time of the transfer, shall have been an absolute rather than a conditional or collateral one: sureties and indorsers are creditors of their principals and of each other to the extent of their right to contribution or indemnity,' while the obligees are creditors not only of the principal debtors but of the indorsers and sureties as well.2
$ 972. Existing and subsequent creditors — What conveyances existing creditors may avoid.- In respect of the time when the creditors became such, there can ordinarily be little question concerning those whose claims were in existence at the time of the conveyance alleged to be fraudulent. As to these, who are usually designated “existing creditors,” it seems now to be the generally established rule that, while conveyances with actual fraudulent intent are of course voidable, conveyances merely voluntary, though by some authorities deemed also fraudulent per se,' are to be regarded simply as presump104; Thompson v. Thompson, 19 Me. 2 Cook v. Johnson, 12 N. J. Eq. 51, 244, 36 Am. Dec. 751; Woolridge v. 72 Am. Dec. 381. Gage, 68 Ill. 157; Anderson v. Ander- 3 In the famous case of Reade v. son, 64 Ala. 403; Gannard v. Eslava, Livingston (1818), 3 Johns. (N. Y.) Ch. 20 Ala, 732.
481, 8 Am. Dec. 520, Chancellor Kent, A claimant in bastardy proceed- after an elaborate review of the Engings is a creditor before judgment, lish and American cases, reached the though she cannot attack the con- conclusion that where the party is veyance until after judgment has indebted at the time of the voluntary been obtained. Pierstoff v. Jorges, conveyance, it is fraudulent as a pre86 Wis. 128, 39 Am. St. R. 881, 56 N. sumption of law, and that this preW. R. 735. So where wife in divorce sumption does not depend upon the proceedings claims alimony. Byrnes amount of the debts, or the extent of v. Volz, 53 Minn, 110, 54 N. W. R. 942. the property or the circumstances of
1 Bowen v. Hoskins, 45 Miss. 183, the party. This strict rule has since 7 Am. R. 728; Pashby v. Mandigo, 42 been repudiated in New York (SewMich. 172, 3 N. W. R. 927; Rogers v. ard v. Jackson, 8 Cow. 406; Cole v. Abbott, 128 Mass. 102; Post v. Stiger, Tyler, 65 N. Y. 73; Dunlap v. Hawk29 N. J. Eg. 554; Shurts v. Howell, 30 ins, 59 N. Y. 342; Smith v. Reid (1892), N. J. Eq. 418; Bibb v. Freeman, 59 134 N. Y.568, 31 N. E. R. 1082), though Ala. 612; Loughridge v. Bowland, 52 it has been followed in a few other Miss. 546; Van Wyck v. Seward, 18 cases. Hanson v. Buckner, 4 Dana Wend. (N. Y.) 375; Rynearson v. (Ky.), 251, 29 Am. Dec. 401. Turner, 52 Mich, 7, 17 N. W. R. 219.