#### *J.*W. Doxsee, Trustee of the Estate of L. P. Waddick, Bankrupt, v. L. P. Waddick and W. M. Welch, Appellants.

Bankruptcy: FRAUDULENT CONVEYANCE: EVIDENCE. In an action 1 to set aside a sale made prior to ’bankruptcy on tlie ground of fraud, evidence of other similar transactions, while proper as bearing on the intent or insolvency of the bankrupt, are inadmissible against the purchaser without a showing that he had knowledge thereof.

Fraud: evidence. Fraud in disposing of property prior to bank-3 ruptcy must be proven like any other fact to avoid the sale; it cannot be inferred merely from suspicious circumstances. Evidence considered and held insufficient to affect the purchaser with either knowledge of the fraud or insolvency of the seller.

*Appeal from Jones District Court.*— IIoN. FT. M. Rejiley, Judge.

Friday, February 5, 1904.

ActioN to set aside a transfer of property made by a bankrupt within four months before his bankruptcy. Decree for plaintiff. Defendants *appeal.*

Reversed.

*Welch & Welch*for appellants.

*Herrick & Bauder*and *Crissman, Trewin & Holbrook*for appellee.

McClaiN, J.

It appears that about three weeks before defendant Waddick, who was engaged in the business of *600selling agricultural implements, filed bis voluntary petition 1. fraudulent conveyances: evidence. in bankruptcy, be sold and transferred to de-iendant Welch, who is an attorney, two iarm wagons and all bis book accounts. Tbe two transactions seem not to have been connected; although they took place on tbe same day or on successive days. No question is before us as to the transfer of tbe wagons, for tbe trial court held tho transaction with reference thereto valid. But tbe sale of tha book accounts was set aside, and defendant Welch was required to account for tbe proceeds, less the cash paid by him therefor. With reference to this transfer, it is not contended that it was for an inadequate consideration, but tbe claim is that it was Avith tbe intent to binder, delay, and defraud creditors, and that this intention was participated in by Welch, or, at least, that Welch had knowledge of the insolvency of Wad-dick at the time the transfer was made, Avhicli Avould be sufficient, under the bankrupt law, to require that it be set aside. There is no direct evidence of knoAvledge on the part of Welch that Waddick had any fraudulent intent, nor, indeed, that Waddick was, at the time of the transfer, insolvent. But it is contended that, taking all the circumstances together, there was sufficient evidence to justify the decree of the court, and counsel for appellee insists that Ave can properly take into account, not only the transactions between Waddick and Welch, but also transactions between Waddick and other persons to whom property was transferred about the same time, for the purpose of finding that Welch had knoAvledge of a fraudulent intent, or, at least, of Waddick’s insolvency. The difficulty with the claims of counsel is, however, that no relation between the transactions with Welch and those Avitli other purchasers of property, either directly or indirectly, is established by the evidence. The other transactions, no doubt, could be properly considered in determining Waddick’s intention, or as bearing on the question of his insolvency. But there is not the slightest showing that Welch had knowledge of these other transactions, and therefore, Avith reference to *601the validity of the transfers, so far as he is concerned, the oi lier transactions are wholly immaterial.

As bearing on the good faith of Welch, or his knowledge of Waddick’s insolvency, the evidence, so far,is it is in any way material, tends to show that the two farm wagons 2. fraud: evidence. were sold at about their retail price, to be paid for when convenient to Welch; that Welch, though the owner of a farm, and pretending to buy them for use on his farm, did not actually make use of them for that purpose, but traded one of them to his tenant for other property, and kept the other, unused, until the time of the trial in the lower court; and that the indebtedness for the wagons was ultimately satisfied by Welch by the payment to his brother and co-partner in the practice of the law of $25, which was used in paying the filing fee in the subsequent bankruptcy proceeding, and a credit by the firm to Waddick of the balance in payment of attorney’s fees in such proceeding. As there was no evidence that Waddick contemplated bankruptcy proceedings at the time of the sale of these wagons to Welch, we cannot see how the transaction as to the wagons has any bearing whatever on the question of the validity of the transfer of the book accounts. The evidence also tends to show that the book accounts, aggregating some $500 in amount, which were transferred to Welch by written instrument of assignment, constituted and were described in the instrument as all the book accounts which Welch had at the time the transfer was anade, and that, in. connection with the transfer, Wad-dick delivered the books themselves to Welch, thus indicating, as it is claimed, that Waddick was going out of business. With reference to this transfer, it may well be said that the circumstances give rise to a suspicion that Welch, as a reasonable person, must have known that Waddick was contemplating the winding up of his business. Bui even if sueh knowledge were established, it would not affect Welch with knowledge of either fraud or insolvency. A merchant is not necessarily insolvent because he goes out of business. Nor *602is a merchant, continuing in business, necessarily insolvent or .contemplating fraud when lie sells his book accounts in a lump. It appears that the sale was for a fair price, that is, for. about the amount which could reasonably have been expected to be realized on the accounts, after deducting the usual collection fee. We cannot find in the record any evidence which would justify us in holding that knowledge of either fraud or insolvency was brought home to Welch. Fraud must be established by a preponderance of evidence in order to justify the setting aside of a transfer, and insolvency is not to be inferred merely from suspicious circumstances, but must be proven, like any other affirmative fact. Without further discussion of the evidence, we deem it sufficient to say that it Avould not justify us in setting aside the transfer of the book accounts. — Etcvetísud.