38 Ark. 419 | Ark. | 1882
OPINION.
The conveyance to Green was, as is clearly shown by the depositions of George and Pickens, voluntary, and made by Toney to defeat the claim of the creditors of C. C. Scott & Co., who were suing him as a silent partner of the firm; but whether they ever recovered judgment against him does not appear, and there was no evidence that he had, in fact, ever been indebted to them.
It does not follow that because his object in making the conveyance was to place the property conveyed beyond their reach, should they recover judgment against him, if he was not.indebted to them, that the conveyance was fraudulent. Certainly they had no ground to complain, for they were not thereby injured, and no fraud was committed upon them.
Except the statement in Toney’s answer, which should be taken and considered as a whole, that he was only indebted to an inconsiderable amount which he had ample means to pay, and did in fact pay before he had any dealings with the plaintiffs, there was no proof that he owed any debts at the time the conveyance was made.
A voluntary conveyance maybe impeached by a suhsequent creditor, on the ground that it was made in fraud of existing creditors; but to do so, he must show either that actual fraud wTas intended, or that there were debts still outstanding, which the grantor owed at the time he made it. 1 Stor. Eq. Jur., sec. 361; Clafflin v. Mess, 30 N. J. Eq., 211; Pope v. Wilson, 7 Ala., 690; Smith v. Greer, 3 Humph., 118; Reade v. Livingstone, 3 Johns. Ch., 480.
Fraud will not be inferred from an act which does not necessarily import it. It is never presumed, but must be proven; and circumstances of mere suspicion, leading to no certain results, are not sufficient proof of it.
There was no proof of any outstanding debt when the plaintiffs’ suit was commenced, nor when Toney became indebted to them : none that when he conveyed to Green he owned no other property, or was not possessed of ample means besides, or, was insolvent; and except the statement in his answer, before referred to, none that he was to any extent or at all in debt.
The fraud charged in the complaint was not therefore sufficiently proven. The decree is reversed.
