A Treatise on Fraudulent Conveyances and Creditors' Bills: With a Discussion of Void and Voidable Acts

FRAUDULENT CONVEYANCES

AND

CREDITORS' BILLS.

CHAPTER I.

INTRODUCTORY OBSERVATIONS.—HISTORICAL REVIEW OF THE GROWTH OF THE LAW CONCERNING FRAUDULENT CONVEYANCES.—VARIOUS PHASES OF THE SUBJECT.

§ 1. Severity of the Roman law.—Modern changes.

2. Prevalence of fraudulent transfers.—The cause.

3. Scope of the inquiry.

4. Forms of relief.

7. Judge Black's views.

8. Proof of moral turpitude.

9. Fraud in fact and fraud in law.

10. The cases considered.

11. Words hinder, delay or defraud.

12. Word disposed construed.

13. No definition of fraud.

14. Restraints upon alienation.

15. Fraudulent conveyances.—Characteristics and classes.

16. Fraudulent conveyances at common law.—Statutes declaratory.

17. Covinous transfers of choses in action.

18. Early statutes avoiding fraudulent conveyances.

19. Statute, 13 Eliz. c. 5, and its object.

20. Its interpretation and construction.

21. Statute, 27 Eliz. c. 4.

22. Twyne's case.

§ 1. Severity of the Roman law.—Modern changes.—It has been truly observed that the protection and preservation of the rights of creditors must be a fundamental policy of all enlightened nations.¹ The method by which this protection may be extended and rendered practically effectual is, however, a problem very difficult of solution. The barbarous practice, which prevailed among the ancient Romans, of putting an insolvent to death, or selling him into slavery, shows what a strong legal and moral foundation a pecuniary obligation had in the minds of the people in early times. The penalty for the failure to pay a debt was as severe as that which is now ordinarily imposed for the commission of the most heinous of crimes.¹ The chains which held a debtor in the power of his creditor have one by one been broken,² but the sacredness of a promise to pay a debt, notwithstanding the abrogation of the ancient penalties, is still voluntarily cherished by the mass of mankind. Yet, unfortunately, the protection and preservation of the rights of creditors is often the last consideration with a numerous class of insolvents. Satisfied of utter inability to pay maturing debts, their remaining property is frequently diverted to inequitable purposes, or squandered with reckless profusion. The confiding creditor, when driven to the necessity of seeking a discovery of equitable assets, often finds at the end of the litigation nothing but a mass of worthless securities, or a beggarly account of empty boxes.³ The underlying reasons for this deplorable condition of affairs will be briefly considered.

§ 2. Prevalence of fraudulent transfers.—The cause.—Since the general abolition of imprisonment for contract debts, dishonest people have grown bolder and more reckless, and the power of creditors to enforce payment of just obligations has been correspondingly diminished. This humane reform in our law, which was inspired by the desire to relieve honest but unfortunate debtors from the painful consequences formerly incident to insolvency, is now eagerly availed of by unscrupulous people who contract obligations with little expectation, and no probability of fulfilling them. Abolition of imprisonment for debt removed the chief barrier and preventive of fraudulent conveyances, viz.: the terror of the debtor's prison. The personal liberty of the debtor being no longer at stake, the natural tendency has been to promote reckless and extravagant expenditures, and to encourage and foster wild business speculations. The cost of every reform must be borne by some one, and creditors are at the present time paying the price of this great change in remedies against the person. The collection of a debt by ordinary process of execution against property on a judgment is now a comparatively rare occurrence. Hence, we have in our modern law a perplexing problem with which our forefathers were but little vexed;— i. e., the question how to neutralize, or avoid in favor of creditors, colorable or covinous transfers of property which this reform in our remedies has rendered it difficult, if not impossible, to prevent or suppress. Collusive voluntary conveyances and secret fraudulent trusts of a thousand dyes, to hinder and defraud creditors, are the constant and daily subject of investigation in our courts. The temptation of debtors who have not the skill to acquire property honestly, or who have been overwhelmed by some unavoidable disaster, to enrich themselves at the expense of their creditors, by some transaction wearing a deep complexion of fraud, seems to be irresistible. This is especially the case in a country like ours, where the comforts which the accumulation of property brings are so accessible and well secured, and in which the acquisition of wealth may be regarded as almost a passion. It may be possible to pity the infirmity of the human mind, sinking under an approaching pressure of distress, and resorting to fraudulent means of protection and provision for a family, but the law cannot approve or sanction such transactions.¹ Probably the most severe trial to which an honest man can be subjected is the inability to pay his debts, even by the application of all his means. He is assailed by temptations of interest, of shame, of affection, to wander from the straight line of duty, while at the same time he is intrusted by the law with dominion over property which equitably and in justice belongs to his creditors.² The quantity of litigation engendered by fraudulent conveyances is appalling, and the cunning devices and intricate schemes resorted to by debtors to elude the vigilance of creditors would, if no moral turpitude was involved, challenge admiration. The condition of the body of our law upon this subject is far from satisfactory, and may be said to still be in a formative and unsettled state.

§ 3. Scope of the inquiry.—It will be the purpose of the first portion of this treatise to elucidate the principles of law affecting conveyances made in fraud of creditors, both in this country and in England, and to point out, somewhat at length, the practical methods by which such collusive trusts can be successfully unraveled, the property regained for creditors, and the prevalent modern tendency of debtors to hinder, delay, and defraud their creditors correspondingly repressed. Bills filed to reach equitable assets, not subject to execution, will receive incidental consideration.

The power of a creditor to inflict anything in the nature of a punishment upon his debtor being practically abrogated in civil procedure,¹ his right to a thorough and searching investigation as to transfers of the debtor's property, in the disposition of which the creditor may justly claim to have an equitable interest,² at least to the extent of his claim, should therefore be facilitated. Such, we are pleased to notice, is the modern tendency of the law, and one of the aims of this treatise will be to show the need of a still further enlargement of these facilities. The practical details of procedure in this class of litigation will receive particular attention. The rights of bona fide purchasers and grantees of debtors for valuable consideration will necessarily be embraced in the discussion.

§4. Forms of relief.—It may be observed that the general purpose of creditors' actions is two-fold; first, to reach assets such as choses in action, which by their intrinsic nature cannot be taken on execution at law; and second, to recover property, whether tangible or intangible, which has been fraudulently alienated by the debtor.³ In the one case the creditor comes into court to obtain satisfaction of his debt out of the property of the defendant, which cannot be reached by execution at law; in the other case he proceeds for the purpose of removing some obstructions fraudulently or inequitably interposed to prevent a sale on execution. ¹ It is believed that as to the first class of cases the jurisdiction of equity in favor of creditors was created to supplement the imperfect relief given by execution.

§ 5. Onus as to fraud.—Suspicions insufficient,—Absence of presumptions.—The great obstacles to the effective development of the branch of our law under consideration are the natural tendency of the courts not to presume fraud² in the absence of clear proof of it, and the extreme difficulty attendant upon showing that a transaction, fair and perfect on its face, and having every semblance of validity, the guilty participants in which are often the chief witnesses in subsequent judicial inquiries, is in fact vicious and colorable. Fraud, it is argued, cannot be established by circumstances of mere suspicion.¹ It will not be presumed where an instrument admits of an opposite construction.² The common law, it is said, is tender of presuming fraud from circumstances, and expects that it be manifest or plainly inferable.³ A dishonest purpose should not be presumed.⁴ Again, it is vaguely asserted that fraud is a fact which must be proved. Courts will not strive to force conclusions of fraud.⁵ There must be something more than mere speculative inference.⁶ As we shall presently see, it is not enough to create a suspicion of wrong. The creditor must prove tangible facts from which a legitimate inference of a fraudulent intent can be drawn.⁷ The evidence must convince the understanding that the transaction was entered into for a purpose prohibited by law.⁸ Finch, J., in delivering the opinion of the New York Court of Appeals, said: Fraud is to be proved and not presumed.⁹ It is seldom, however, that it can be directly proved, and usually is a deduction from other facts which naturally and logically indicate its existence. Such facts, nevertheless, must be of a character to warrant the inference. It is not enough that they are ambiguous, and just as consistent with innocence as with guilt. They must not be, when taken together and aggregated, when interlinked and put in proper relation to each other, consistent with an honest intent. If they are, the proof of fraud is wanting.¹

§ 6. The badges and evidences of fraud will be discussed presently. We may here observe that mere inadequacy of consideration, unless extremely gross, does not per se prove fraud.² The disparity as to consideration must be so glaring as to satisfy the court that the conveyance was not made in good faith.³ Neither can fraud be presumed unless the circumstances on which such presumption is founded are so strong and pregnant that no other reasonable conclusion can be drawn from them,⁴ and it seems that even strong presumptive circumstances of fraud will not always outweigh positive testimony against it,⁵ nor will fraud be inferred from an act which does not necessarily import it.⁶ If an honest motive can be imputed equally as well as a corrupt one, the former should be preferred.⁷

Good faith in business transactions is a settled presumption of law,⁸ and the burden of proof is on the party who assails good faith and legality.⁹ Many an important case has been wrecked at the trial, or abandoned by the creditor, on account of the great embarrassments which this onus imposed. This presumption is the creditor's stumbling block on the one hand and the shield of unscrupulous debtors on the other. It is said in Nicol v. Crittenden,¹ that it is impossible for a transfer to be in fraud of creditors unless it is made with a fraudulent intent, and that the nature of the intent will not be presumed as matter of law, but is to be inferred by the jury from the facts in evidence. This broad statement of the principle is at least debatable and will be considered presently.² Then in Cummins v. Hurlbutt,³ it was asserted that to set aside a written instrument on the ground of fraud, the evidence of the fraud must be clear, precise and indisputable. A jury should not be permitted to find fraud to impeach a settlement in writing on any fancied equity, or on vague, slight or uncertain evidence, even though they might think it fairly and fully satisfied them. As a general rule the transaction which is the subject of attack has been evidenced in writing, and the cases show that a deliberate deed or writing, or a judgment of a court, is of too much solemnity to be brushed away by loose and inconclusive evidence.⁴

Fraud on the other hand, is rarely perpetrated openly and in broad daylight. It is committed in secret and privately, and is usually hedged in and surrounded by all the guards which can be invoked to prevent discovery and exposure. Its operations are frequently circuitous and difficult of detection. The proof of it is very seldom positive and direct, but, as we shall presently see, is dependent upon very many little circumstances and conclusions to be drawn from the general aspects of the case.¹

§ 7. Judge Black's views.—The learned Chief Justice Black urged that the proposition that fraud could never be presumed, but must be proved, could be admitted only in a qualified and very limited sense. The idea that it was a fundamental maxim of the law, incapable of modification, and open to no exception, was denied, and the principle was said to have scarcely extent enough to give it the dignity of a general rule. This vigorous writer observes: "It amounts but to this: that a contract, honest and lawful on its face, must be treated as such until it is shown to be otherwise by evidence of some kind, either positive or circumstantial. It is not true that fraud can never be presumed. Presumptions are of two kinds, legal and natural. Allegations of fraud are sometimes supported. by one and sometimes by the other, and are seldom, almost never, sustained by that direct and plenary proof which excludes all presumption. A sale of chattels without delivery, or a conveyance of land without consideration, is conclusively presumed to be fraudulent as against creditors, not only without proof of any dishonest intent, but in opposition to the most convincing evidence that the motives and objects of the parties were fair. This is an example of fraud established by mere presumption of law. A natural presumption is the deduction of one fact from another. For instance: a person deeply indebted, and on the eve of bankruptcy, makes over his property to a near relative, who is known not to have the means of paying for it. From these facts a jury may infer the fact of a fraudulent intent to hinder and delay creditors. A presumption of fraud is thus created, which the party who denies it must repel by clear evidence, or else stand convicted. When creditors are about to be cheated, it is very uncommon for the perpetrators to proclaim their purpose, and call in witnesses to see it done. A resort to presumptive evidence, therefore, becomes absolutely necessary to protect the rights of honest men from this, as from other invasions."¹

§ 8. Proof of moral turpitude.—The authorities have been multiplying, in certain quarters at least, to strengthen the efforts of creditors to overcome this difficulty arising from the presumption of validity and good faith. Many of the cases attach but little importance to the sworn assertion of perfect good faith and entire honesty on the part of the purchaser,² or of the seller, and the courts are trying to unravel these transfers without exacting explicit proof of moral turpitude.³ The intent or intention is regarded as an emotion of the mind shown by acts and declarations, and, as acts speak louder than words, if a party is guilty of an act which defrauds another, his declaration that he did not by the act intend to defraud, is weighed down by the evidence of his own act.⁴ A person would not be likely to accomplish an act and afterwards say that it was prompted by corrupt motives. The moral sense is much weaker in some men than in others, and it would be a strange rule which made one man's rights dependent upon another's moral sense. There are certain rules founded in experience and established by law for determining the validity of transfers under the statutes concerning fraudulent conveyances; and a transgression of these rules will justify courts and juries in avoiding the transaction without regard to the opinions of the parties to it, and their evidence should have little weight.¹

In French v. French,² Lord Chancellor Cranworth remarked: "I shall not say that the transfer was voluntary or fraudulent, but simply void as against the creditors of William French." Again he observed in Spackman v. Evans:³ I do not attribute moral fraud to the appellant, but the whole transaction was fictitious. So in Backhouse v. Jett,⁴ Chief Justice Marshall said: The policy of the law very properly declares this gift void as to creditors, but looking at the probable views of the parties at the time, there appears to be no moral turpitude in it.⁵ This principle may be further illustrated from Gardiner Bank v. Wheaton,⁶ where the court say: When we pronounce the transaction between the defendants, in respect to the conveyance from Gleason to Cole as fraudulent, we do not mean to insinuate that there was any moral turpitude on the part of Prince; nor do we believe there was any; but though the motives of a party may be good in such a transaction, still, where the design, if sanctioned, would defeat or delay creditors * * * neither law nor equity can sanction the proceeding; and on that account it is termed a legal fraud, or a fraud upon the law.¹ It was not necessary, said Dwight, C., in Cole v. Tyler,² that there should be any actual fraudulent intent.³ The requisite intent may be inferred from the circumstances of the case. ⁴ The act may be adjudged covinous although the parties deny all intention of committing a fraud,⁵ and it is not necessary to impute to the parties a premeditated or wicked intention to destroy or injure the interests of others.⁶ A man may commit a fraud without believing it to be a fraud.⁷ The statute, 13 Eliz., refers to a legal, and not a moral intent; that is, not a moral intent as contradistinguished from a legal intent. It supposes that every one is capable of perceiving what is wrong, and, therefore, if he does that which is forbidden, intending to do it, he will not be allowed to say that he did not intend to do a prohibited act. A man's moral perceptions may be so perverted as to imagine an act to be fair and honest which the law justly pronounces fraudulent and corrupt.⁸ "It is not important what motives may have animated the parties," if the necessary effect of the disposition is to hinder and delay creditors.⁹ It results that the mental operation or emotion of the debtor, and the legal conclusion from the acts and circumstances may be diametrically opposed.

§ 9. Fraud in fact and fraud in law.—Some of the cases maintain that there is not, for any practical purpose, so far as the validity of the particular transaction may be concerned, any difference between fraud in fact and fraud in law; between a fraud proved by direct evidence, and a fraud inferred by law, from facts which are consistent with the absence of an actual intent to defraud. Whenever the effect of a particular transaction with a debtor is to hinder, delay, or defraud creditors, the law infers the intent, though there may be no direct evidence of a corrupt or dishonorable motive, but on the contrary, an actual honest motive existed. The law interposes, and declares that every man is presumed to intend the natural and necessary consequences of his acts; and the courts must presume the intention to exist, when the prohibited consequences must necessarily follow from the act, and will not listen to an argument against it.¹ Hence it has been remarked that where a conveyance by its terms operates to hinder, delay, or defraud creditors, the intent to do so is imputed to the parties, and no evidence of intention can change that presumption. A different intent cannot be shown and made out by the reception of parol testimony, nor deduced from surrounding circumstances.² What is meant by these cases is that whether the fraudulent intent is reasoned out and declared by the court by the proper application of the rules of legal construction and interpretation to the particular transaction or instrument under consideration, or whether it is found by a jury to exist as matter of fact,¹ in either case the transfer is made with the intent to defraud creditors, and may be avoided. Hence it is said that where the fraudulent intent is not apparent on the face of the deed, it is a question of fact for the jury,² and the court has not the power to infer the intent.³

§ 10. The cases considered.—This subject may perhaps be illustrated from the case of Harman v. Hoskins,⁴ where it is laid down that the intent may be vicious, though the deed is fair and regular upon its face, and a full price was paid. The intent must then be proved aliunde. In cases where the transaction on its face is fair, if it sprung from the motive to hinder, delay or defraud creditors, then the intent is purely a question of fact to be established by the testimony. But a party will be held as intending the natural and inevitable legal effects of his acts. Hence if his deed by its recitals necessarily operates to interpose unreasonable hindrance and delay to creditors, or to entirely defeat their claims, the question of intent will be practically a conclusion of law. A deliberate act which naturally and inevitably produces a certain result, must in law be held to have been contrived and performed to carry out and consummate that result. The court in such a case arrives at the conclusion, by a proper construction of the instrument, that such is its direct and inevitable effect, and its result, as matter of law, that the statute is satisfied. In other words, the transaction itself so palpably and conclusively establishes the intent that testimony upon that point would be superfluous, and a finding of a jury of an intent different from that which the legitimate construction of the instrument furnishes, would be erroneous.¹ Thus in Young v. Heermans,² a conveyance by a debtor of all his property, real and personal, without consideration, and in trust for the grantor's benefit during his life, and after his death for the payment of his debts, was declared to be fraudulent per se; no evidence aliunde being deemed necessary to establish the fraudulent intent. Proof of the intention to enter into the prohibited transaction is all that is requisite. When the courts declare an instrument fraudulent on its face, it does not necessarily mean that it was the offspring of a corrupt intent considered as a mental operation, but that it is an instrument the law will not sanction or give effect to, as to third persons, on account of its susceptibility of abuse, and the great danger of such contracts being used for dishonest purposes.³

It may scarcely be proper to say in these cases that there is a presumption or conclusion of law that the transaction is fraudulent, but rather that the circumstances of the transaction, or the transaction itself, furnish conclusive evidence of fraud; and if, against such evidence, a jury, a judge or referee should find that there was no fraud, a new trial would be granted, not because any legal presumption or conclusion had been violated, but because the finding was against the weight of evidence; against conclusive evidence.⁴ The intent is gathered from the instrument, and no external aid is necessary to develop it.¹ The fraud is self-evident.² But to find fraud as matter of law it must so expressly and plainly appear in the instrument as to be incapable of explanation by evidence dehors.³

Grover, J., an able judicial officer, and vigorous writer, ignored the distinction between fraud in law and fraud in fact. He said: A distinction is attempted, in some of the cases, between fraud in law and fraud in fact. I think there is no solid foundation for it. When upon the face of the assignment any illegal provision is found, the presumption at once conclusively arises that such illegal object furnished one of the motives for making the assignment; and it is upon this ground adjudged fraudulent and void. The result is the same when the illegal design is established by other evidence. The inquiry is as to the intention of the assignor.⁴ Coleman v. Burr⁵ is an extreme illustration. The referee found that the conveyance was honest, but the transaction was set aside because from the facts found the inference of fraud was inevitable.

Fraud, said Mr. Justice Buller, in Estwick v. Caillaud,⁶ is sometimes a question of law, sometimes a question of fact, and sometimes a mixed question of law and of fact. Perhaps it would be more accurate to say that fraud is never purely a question of law, nor exclusively a question of fact,⁷ though it frequently partakes more largely of the one quality than of the other. Fraud is not to be considered as turning solely on intent as an emotion, but as a legal deduction. What intent, said Ruffin, J., is in law fraudulent, the court must inform the jury, else the law can have no rule upon the doctrine of fraud; and every case must create its own law.¹ Perhaps the clearest division of fraud is into three classes; first, fraud that is self-evident with which the jury have nothing to do; second, fraud which depends upon a variety of circumstances usually connected with motive and intent, which is an open question of fact for the jury, with instructions as to what constitutes fraud; third, presumptive fraud where the presumption may be rebutted.²

§ 11. Words hinder, delay or defraud.—To hinder and delay creditors is to do something which is an attempt to defraud, rather than the successful accomplishment of a fraud; to put some obstacle in the path, or interpose unjustifiably some period of time before the creditor can reach his debtor's property and apply it toward the liquidation of the debt.³ The words hinder, delay and defraud, are not synonymous. A conveyance, may be made with intent to hinder or delay without an intent to defraud. Either intent is sufficient.¹ The statute is in the disjunctive and attaches a separate and specific meaning to each of the words which it employs.² An instance of hindrance and delay within the statute is given in a case in Pennsylvania, where a debtor departed from the State leaving no property subject to the process of his creditor, and making no provision for the payment of his debts.³ A better illustration is to be found in a case in the New York Court of Appeals, where the debtor conveyed his property in trust for his own benefit during his life, and after his death for the payment of his debts.⁴ The authorities avoiding assignments by the terms of which the assignee is empowered to sell upon credit are, perhaps, more in point than either of the illustrations given. A conveyance of real estate by a debtor upon the understanding that the grantee should hold it in trust for the grantor, and as fast as money could be realized therefrom, should apply it to the payment of his debts, necessarily operates to hinder and delay creditors. A debtor's property is in theory of law subject to immediate process issued at the instance of his creditors, and the debtor will not be permitted to hinder or delay them by any device which leaves it, or the avails of it, subject to his control and disposition; and it makes no difference that the debtor intends to apply the avails of it to the payment of his debts.⁵ So a deed of trust creating a lien upon personalty for an indefinite period, the natural operation of which is to benefit the grantor, is fraudulent as to creditors.¹

The statute seems to be aimed at three things which it is supposed insolvents would possibly be tempted to do for the purpose of avoiding or deferring the payment of their debts. First, they might dispose of their property in such manner as to interpose obstacles to legal process, with intent to hinder creditors in the collection of their demands; or, second, to delay payment to some future period; or, third, to defraud their creditors by absolutely defeating all attempts to enforce their claims. Any one of these purposes is sufficient to avoid the transaction.² If the design of a transfer is a lawful one it matters not that a creditor is thereby deprived of property which might otherwise have been reached and applied to the payment of his debt. Hence it is that a general assignment,³ or a preference,⁴ is upheld though each is often made or given to thwart some belligerent creditor.⁵ The secret motives that prompt the act in such cases are unimportant.⁶ Speaking of devices to aid the debtor, Davis, J., said, in Robinson v. Elliott,⁷ The creditor must take care in making his contract that it does not contain provisions of no advantage to him, but which benefit the debtor, and were designed to do so, and are injurious to other creditors. The law will not sanction a proceeding of this kind. It will not allow the creditor to make use of his debt for any other purpose than his own indemnity. If he goes beyond this, and puts into the contract stipulations which have the effect to shield the property of his debtor, so that creditors are delayed in the collection of their debts, a court of equity will not lend its aid to enforce the contract.

§ 12. Word disposed construed.—-In Bullene v. Smith ¹ it appeared that section 398, of the Revised Statutes of Missouri, authorized an attachment to issue in the following, among other cases: Where the defendant had fraudulently conveyed or assigned his property so as to hinder or delay his creditors; where the defendant had fraudulently concealed, removed or disposed of his property or effects, so as to hinder his creditors. The court held that the word disposed, as here used, covered all such alienations of property as might be made in ways not otherwise pointed out in the statute: for example, pledges, gifts, pawns, bailments, and other transfers and alienations which might be effected by mere delivery and without the use of any writing, assignment or conveyance. Other species of conveyances were excluded. Hence it was held that a charge to a jury to the effect that the defendant had fraudulently disposed of his property was not supported by proof that he had executed a fraudulent mortgage.

§ 13. No definition of fraud.—Fraud is as difficult to define² as it is easy to perceive. Courts of equity have skillfully avoided giving a precise and satisfactory definition of it, so various is its form and color. It is sometimes said to consist of any kind of artifice employed by one person to deceive another. But the term is one that admits of no positive definition, and cannot be controlled in its application by fixed and rigid rules. It is to be inferred or not, according to the special circumstances of every case. Whenever it occurs it usually vitiates the transaction tainted by it.¹ Fraud, said De Grey, C. J., is an extrinsic, collateral act, which vitiates the most solemn proceedings of courts of justice. Lord Coke says it avoids all judicial acts, ecclesiastical or temporal.² It is the judgment of law on facts and intents.³ Its existence is often a presumption of law from admitted or established facts, irrespective of motive, and too strong to be rebutted.⁴ Fraud, said Story, J., will vitiate any, even the most solemn transactions; and an asserted title to property, founded upon it, is utterly void.⁵ Fraud is always a question of fact with reference to the intention of the grantor. Where there is no fraud there is no infirmity in the deed. Every case depends upon its circumstances, and is to be carefully scrutinized. But the vital question is always the good faith of the transaction. There is no other test.¹ Fraud does not consist in mere intention, but in intention carried out by hurtful acts.² Fraud or no fraud is generally a question of fact to be determined by all the circumstances of the case.³ Direct proof of positive fraud in the various kinds of covinous alienations which we are to discuss, is not, as we shall presently see, generally attainable, nor is it vitally essential. The fraudulent conspirators will not be prompted to proclaim their unlawful intentions from the housetops, or to summon disinterested parties as witnesses to their nefarious schemes. The transaction, like a crime, is generally consummated under cover of darkness, with the safeguards of secrecy thrown about it. Hence it must be scrutinized and judged by all the surrounding circumstances of the case. The evidence is almost always circumstantial. Nevertheless, though circumstantial, it produces conviction in the mind often of more force than direct testimony. ⁴ In such cases, where fraud is in issue, the field of circumstances ought to be very wide.⁵ From the very nature of the case it can rarely ever be proved otherwise than by circumstantial evidence. And if the facts and circumstances surrounding the case, and distinctly proven, are such as would lead a reasonable man to the conclusion that fraud in fact existed, this is all the proof which the law requires.¹ It may be observed that there can be no fraud unless there exist claims and rights which can be delayed and hindered, and which, but for the fraudulent conveyance, could be asserted. The law takes no cognizance of fraudulent practices that injure no one. Fraud without injury will not furnish a cause of action. Unless these elements co-exist, the courts are powerless to render any