#### Elisha B. Hitt, Appellant, *v.*Joseph W. Ormsbee *et*al., Appellees.

APPEAL FBOM SCOTT.

The admissions of one of several parties to a bill in chancery are not competent evidence against others, whose interests are adverse.

Where a party is indebted, and makes ample provision for the payment of those debts, and in the meantime makes a provision for his family, his indebtedness does not afford evidence of a fraudulent intent.

Hothing can be admitted, but everything must be proved against an infant.

Hitt filed his bill in the Scott Circuit Court, to perfect his title *169to a lot of land, and to establish the right of Ormsbee to the lot, and to get possession of the land in his own right.

Hitt sets out that in October, 1847, he recovered -a judgment at law, in the Scott Circuit Court, against Ormsbee, and sued out an execution, and levied upon and sold a house -and lot in Exeter, in said county, and purchased the same as the property of Ormsbee. In fifteen months after the sale the sheriff made a deed to Hitt, conveying to him all the right of Ormsbee to said premises.

That the lot was purchased and paid for by Ormsbee in 1840, at which time he took possession, and built a house and made other improvements thereon, using his own funds in all instances for that purpose. That on the 30th of April, 1842, Ormsbee was in possession of said property, using it and claiming it as his own, and was in possession at the filing of the bill, which was in May, 1849, and that his debt to Hitt was contracted on 30th April, 1842, although the note sued on was not given for several months afterwards. It appears that when the lot was purchased, a deed was taken conveying the same in these words, “ grant, bargain, sell, and convey, and confirm unto the said Frances Heath, her heir Mary S. Heath, now the wife of J. W. Ormsbee, and the heirs of the said Mary S. by the said Ormsbee, forever.”

It appeals that Frances Heath is the mother of Mary L. Heath, who is the wife of Ormsbee, and that she resides in Virginia, and never had possession of the land or the deed, or claimed any interest in the property.

It is in proof that when Ormsbee purchased and paid for the property, that he admitted he was in debt in this state, and to persons in other states.

It was proven by the defendant, Ormsbee, that at the time he purchased said property, and for some time afterwards, he was xeputed in this state to be unembarrassed, and to be worth two or three thousand dollars, and that this property was believed to be his. But none of the witnesses had any personal knowledge of his circumstances. It is in proof that a large debt for which he was liable as a member of a firm, has since been paid by the members of that firm, and that Ormsbee is insolvent, and that many of his debts are still unpaid.

'The bill alleges that the purchase was for the benefit of Orms*170bee, and that he procured the deed to be made as it was, to • defraud his creditors.

Ormsbee and Frances Heath, by their answers, admit the truth of the charges in the bill, except the charge that the property was bought to defraud creditors. The answer states that Ormsbee bought the property for the benefit of his family, to save them from the extremity of bad fortune.

Upon the hearing of the cause, Woodson, Judge, at Juno term, 1850, refused the relief prayed for and dismissed the bill.. Hitt appealed to this Court, and assigns, said decision for error.

M. McCoknel, for Appellant.

That as Ormsbee was in possession, and Mrs. Heath had no-right to it, the projjerty was subject to be sold to satisfy Ormsbee’s debts. The intention of Ormsbee in connection with the deed makes no difference whatever. That from the recording of the deed and the admissions of the answers, and the terms of the grant, it is clear that this is a conveyance in trust to the mother of Ormsbee's wife, &c., for his use, bought with his money, and that he would have the right to establish the title in him as the *cestui qui trust,*and if he could do so, his creditor having all his right, could do the same thing. Macubbin *v.*Cromwell, 7 Gill. & John., 157; Boyd *v.*McLane, 1 John., 582; Botsford *v.*Burr, 2 John., 409; Livingston *v.*Livingston, 2 John., 540.

Ormsbee paid the money; the deed having been taken in the name of his mother-in-law, creates a resulting trust in Ormsbee, which interest is subject to execution. Perry *v.*Head, 1 A. K. Marshall, 47; 4 J. J. Marshall, 592; Elliott *v.*Armstrong, 2 Blackf., 198; Jennison *v.*Graves, 2 Blackf., 440; Doyle v. Sleeper, 1 Dana, 536; Hamson *v.*Battle, 1 Dev. Equity Rep., 537; Kellogg *v.*Wood, 4 Paige, 578; Ontario Bank *v.*Root, 3 Paige 478.

D. A. Smith, for Appellees.

The bill in this case assails the deed by Edwards for the benefit of Ormsbee’s wife and her heirs by his body, as actually fraudulent against his creditors. I submit that. as the debt was *171not contracted until some time after the execution of the deed, that the deed is a *bona fide*post nuptial settlement that cannot be called in question by Hitt as a subsequent creditor. 1 American Leading Cases, pp. 40 to 46, 55, 56; 1 Story’s Eq. Juris., sections 855 to 865 inclusive.

Caton, J.

J. The admissions of Ormsbee, as testified to by the witnesses, are not competent evidence against the other defendants. In contemplation of law, at least, his interests were adverse to theirs. It does not appear that those admissions were made at a time when it was against his interest to make them, even if that would render them competent. The only indebtedness proved against Ormsbee, at the time he purchased the premises in question, except by such admissions, was his indebtedness as a member of the late firm of McConnel, Ormsbee, & Co. Although his legal liability for those debts still continued, those liabilities were provided for by the undertaking of the other members of the firm to pay them. In pursuance of that undertaking they have since been paid. Ho doubt has been suggested of the entire responsibility of the other members of the firm, to fulfil that undertaking, and the result shows, that that provision was amply sufficient. Ho doubt that he considered at the time, and such appears to have been the fact, that those debts were as amply provided for, as if they had been secured by a mortgage. It, then, could not have been in his contemplation, at the time he made this provision for his family, to defraud those creditors, any more than as if those debts bad been secured by a mortgage ; and the rule seems to be well settled, that where debts are thus secured, they do not afford evidence of a fraudulent intent.

As to the infant defendant, the case is still more defectively made out. As to him, nothing can be admitted, but everything must be proved. Beyond the admissions of the answers, there is no evidence that the premises were purchased with the funds of Ormsbee. As to the infant, there is no evidence of the judgment against Ormsbee, or of the subsequent proceedings under which the complainant claims title. Except by the admissions contained in the answers of Ormsbee and Heath, there is not the shadow of a case made out.

The decree of the Circuit Court dismissing the bill was proper, and it must be affirmed, with costs.

*Judgment affirmed.*