67 Miss. 516 | Miss. | 1890
delivered the opinion of the court.
Vaccaro & Co. sued out an attachment against one Ward, which was levied on certain goods which the plaintiffs claimed had been sold by Ward to Richards for the purpose of defrauding his creditors. Plaintiffs sustained their suit against Ward, and the present controversy is between them and Richards, who interposed a claim
There is conflict in the decisions, and much confusion among the text-writers, on the question involved. The effect of the statute against fraudulent conveyances, as held by one line of decisions, is about this : Conveyances made by a grantor in fraud of his creditors are valid, unless it be shown that the purchaser is not a purchaser for value, and in good faith. Another line of authorities states the effect of the statute to be that conveyances fraudulent on the part of the grantor are invalid at the suit of his creditors, unless it be shown that the purchaser is a purchaser for value, and in good faith. The authorities are uniform in declaring that one who attacks a conveyance as fraudulently made must establish the fraud. The burden of proof is upon him, and he is opposed by the presumption of good faith and legality that attaches in favor of the ordinary transactions of business. The conflict of decisions arises a step beyond, when the inquiry is whether the plaintiff, by proof of the fraud of the grantor, has made a prima fade case against the grantee, entitling him to recover, in the absence of any evidence by his adversary. In Massachusetts, New Jersey, Iowa, Wisconsion, Connecticut and Maryland it is held that the plaintiff must not only show fraud on the part of the seller, but participation in or notice of it by the buyer. Bridge v. Eggleston, 14 Mass. 245; Foster v. Hall, 12 Pick. 89; Insurance Co. v. Tooker, 35 N. J. Eq. 408 ; Tantum v. Green, 21 Ib. 364; Bank v. Northrup, 22 Ib. 58; Adams v. Foley, 4 Iowa, 44; Fifield v. Gaston, 21
We concur in the views announced by those courts which hold that proof of fraud on the part of the grantor is sufficient to entitle his creditors to subject the property fraudulently assigned, in the absence of evidence showing the claimant to be a purchaser for value and in good faith. We fail to perceive why, in cases of this character, the party assailing the conveyance shall be required to assume the burden of showing participation in the fraud by the purchaser, and the non-payment of value for the property fraudulently conveyed.
The decisions holding it to be the duty of the creditor to establish not only the fraud of the seller, but that of the purchaser, seem to rest upon an undue extension of the rule that fraud is never to be presumed but must always be proved by the party alleging it to exist. This rule - is so well established as to have become one of the maxims of the law; but it is not true that, where a transaction has been shown to be fraudulent on the part of one of the actors, it is incumbent upon a party claiming or defending against it to show the fraud of the other actor claiming under it. Good faith and legality are presumed to exist in reference to the ordinary business transactions of life, and the burden is upon him who asserts the contrary; but it is otherwise when the transaction is itself unfair, or is prima facie shown to be illegal. Whart. Ev., §§ 366, 1248; Bigelow, Frauds, 130, 132. Mr. Bigelow, while denying that the
There are two classes of suits at law so nearly analogous to suits by creditors to subject pi’operty fraudulently conveyed that it is difficult to draw a distinction between them sufficient to Avarrant the application of different rules of procedure. These are suits by one whose property has been secured by the fraud of the vendee,
In view of the very’ full instructions secured by the claimant in this case, we deem it unnecessary to consider whether the first instruction for the plaintiffs is technically accurate, in announcing the proposition that proof of the fraud of the seller shifted the burden of proof to the claimant, or whether, as contended by Mr. Bigelow, the instruction should have been that such proof made a prima facie case for the plaintiffs, which it was incumbent upon the claimant to meet by the production of evidence sufficient to restore the equilibrium. The distinction is technical, and it is manifest that in this case it was not influential in producing the result reached.
This disposes of the errors assigned, except the action of the court in refusing the second instruction asked by the claimant. The substance of this instruction is but a repetition of the matters distinctly specified in the other instruction given for the claimant, and under such circumstances its refusal cannot be ground of error.
The judgment is affirmed.