1 Story's Eq. Jur. 12th ed. sec 350, et seq.

3. Consideration must be valuable. This excludes mere moral obligations,2 though it is otherwise as to obligations founded on antecedent legal indebtedness; and hence a party may waive the benefit of a statute relieving him from legal liability.3 A marriage is a valuable consideration, so that a settlement made by a man on his intended wife, in consideration of marriage, is good, although he was insolvent at the time, unless the object was to defraud his creditors.4 But this does not preclude suitable settlements made by a solvent party on his family when he is engaged in a business not involving large hazards, such settlements not being made to prevent any probable contingent liability.5 It is otherwise when the party making the settlement either knows or ought to know himself to be insolvent.6 But " mere indebtedness," says Judge Story, after noticing the divergency of views in the earlier cases, "would not per se estahlish that a voluntary conveyance was void, even as to existing creditors, unless the.

1 Hamilton v. Russell, 1 Cranch, 309; Clements v. Moore, 6 Wall. 299; Clark v. Douglass, 62 Penn. St. 408; see notes to Twyne's case, 1 Sm. Lead. Cas. 7th Am. ed.; 2 Kent's Com. 440; notes to Sexton v. Wheaton, 1 Am. Lead. Cas. 58.

2 Infra, sec 497, 512.

3 Infra, sec 513; Bump on Fraud. Conv. 249.

4 Fraser v. Thompson, 1 Giff. 49; Reade v. Livingston, 3 Johns. Ch. 489; Tomlinson v. Matthews, 98 111. 178; see infra, sec 537, where this topic is discussed.

5 See Ware v. Gardner, L. R. 7 Eq. 317; Townsend v. Westacott, 2 Beav. 340; Sexton v. Wheaton, 8 Wheat. 229, and notes 1 Am. Lead. Cas. 57; Mattingly v. Nye, 8 Wall. 370; Brackett v. Waite, 4 Vt. 389; 6 Vt. 411; Salmon v. Bennett, 1 Conn. 525; Jackson v. Town, 4 Cow. 599; Mellon v. Mul-vey, 8 C. E. Green, 198; Benedict v. Montgomery, 7 W. & S. 238; Ammon's App., 63 Penn. St. 284; Williams p. Davis, 69 Penn. St. 21; Morris v. Ziegler, 71 Penn. St. 450; Monroe v. Smith, 79 Penn. St. 459; Frank v. Welch, 89 111. 38; Huston v. Cantril, 11 Leigh, 136; Duhme v. Young, 3 Bush, 343; Laird v. Scott, 5 Heisk. 314; Harrell v. Mitchell, 61 Ala. 270. 6 Townshend v. Windham, 2 Ves. 10;. Holloway v. Millard, 1 Mad. 414; Wickes v. Clarke, 8 Paige, 161; Kane v. Roberts, 40 Md. 590; Patten v. Casey, 57 Mo. 118; Power v. Alston, 93 111. 587; Wake v. Griffin, 9 Neb. 47.

other circumstances of the case justly created a presumption (or more properly, to use Lord Mansfield's term, 'argument' or 'inference') of fraud, actual or constructive, from the condition, state, and rank of the parties, and the direct tendency of the conveyance to impair the rights of creditors."1 An important additional element of fraud in such cases is the reservation of any secret benefit to the grantor.2

4. Insolvency essential; or intention to take great risks. As a condition of fraudulent intention, insolvency, known to the grantor, must be shown. A party who believes himself to have the pecuniary ability to make a gift, can make such gift without the risk of its being subsequently impeached, supposing his belief is not negligently adopted.3 The intention to enter into a hazardous business, also, may cast the suspicion of fraud on any settlements made with a view of protecting the grantor's property from the contingency of loss in such business, if such settlements were unsuitable to the circumstances of the party making them, and if they were concealed from parties trusting him on the faith of his supposed possession of the assigned estate.4 But indebtedness alone does not prejudice such a settlement, supposing the settlement to be reasonable, as there is no one who does not owe some debts. If, however, such debts are so great as to constitute probable insolvency, and if the grantor is or ought to be conscious of this fact; and if concealment or other modes of unfairness be shown; then an intent to defraud may be inferred. The question is one of inductive reasoning.5 " A fair voluntary conveyance," justly says Lord Mansfield, "may be good against creditors, notwithstanding its being voluntary. The circumstance of a man being indebted, at the time of his making a voluntary conveyance, is an argument of fraud. The question in every case, therefore, is, whether the act done is a bona.

1 To this is cited Gale v. Williamson, 8 M. & W. 405.

2 Egery v. Johnson, 70 Me. 258; Donovan v. Dunning, 69 Mo. 436; see Franklin v. Claflin, 49 Md. 24.

3 Bispham's Eq. sec 245; Bump, Fraud. Con. 291; Jenkyn v. Vaughan, 3 Dr. 425; Kent v. Riley, L. R. 14 Eq. 190;.

Freeman v. Pope, L. R. 5 Ch. 538; Smith v. Cherrill, L. R. 4 Eq. 390.

4 Mackay v. Douglass, L. R. 14 Eq. 106; Tanqueray v. Bowles, L. R. 14 Eq. 151; Kent v. Riley, L. R. 14 Eq. 190.

5 Wh. on Ev. sec 33.

fide transaction, or whether a trick or contrivance to defeat creditors."1 According to Chancellor Kent, as followed by Judge Story,2 "if the party is indebted at the time of the voluntary settlement, it is presumed to be fraudulent in respect to such debts (that is, those antecedently due), and no circumstances will permit those debts to be affected by the settlement, or repel the legal -presumption of fraud. The presumption of law in this case does not depend upon the amount of the debts, or the extent of the property in settlement, or the circumstances of the party. There is no such line of distinction set up or traced in any of the cases. The attempt would be embarrassing, if not dangerous, to the rights of creditors, and might form an inlet to fraud. The law has, therefore, wisely disabled the debtor from making any voluntary settlement of his estate to stand in the way of existing debts." Adding to this, "debts about to be incurred in view of the assignment," and inserting in the place of the words italicized "inference" (the conclusions being inductive,from a survey of all the facts in the case, and not a presumption of law),3 the view thus expressed not only accords with that of Lord Mansfield, but is sustained by right reason and recent adjudications.4

5. Choses in action are subject to same rule. In England choses in action were held not within the statute of Elizabeth.5 This, however, is now corrected by statute;6 and in this country this distinction between choses in action and other species of property cannot be said ever to have existed.7.

6. Conveyances good against fraudulent grantor. Only creditors, or subsequent purchasers, can, as a general rule, set aside such conveyances.8 The grantor, as a party to the fraud, can-.

1 Lord Mansfield, C. J., Cadogan v. Kennett, Cowp. 434.

2 Reed v. Livingston, 3 Johns. Ch. 500; Story's Eq. Jur. 12th ed. sec 359.

3 See Wh. on Ev. sec 1226 et seq. 1248.

4 Jenkyn v. Vaughan, 3 Drew, 419; Crossley v. Ell worthy, L. R. 12 Eq. 158; Freeman v. Pope, L, R. 5 Ch. Ap. 538; Mackay v. Douglass, L. R. 14 Eq.

106; McLaughlan v. Bank, 7 How. U. S. 220; Sparkman v. Place, 5 Ben. 184; Cornwall in re, 9 Blatch. 116; Summers v. Hoovey, 42 Ind. 153.

5 Story's Eq. Jur. 12th ed. sec 246.

6 Stokel v. Cowan, 29 Beav. 637.

7 Bispham's Eq. sec 246.

8 Bispham's Eq. sec 248-251; Story's Eq. Jur. 12th ed. sec 371; as to bonafide purchasers see sec 211, 291, 347, 376.

not obtain the aid of the courts to get rid of the obligation of such a conveyance, though it could not be enforced against him.1 Nor can third parties, unless they are parties defrauded, impeach such conveyances.2