Nevada County picayune., 1890-08-28

lOWlDg -NOfWOOu Urm 1alloU III business, or was closed out by credi- tors. The plaintiffs recovered their judgment on September 1, 1881 It does not appear from the record when that debt was created. It is probable that it was before the date of conveyance, which is attacked herein as fraudulent; since, as we have seen, the firm of Nelson X Co. failed very shortly afterwards. The plaintiffs were bankers at Prescott, and it would be strange if the firm of Nelson X Co., could have obtained so large credit on the verge of in- solyency or after insolvency. Still on the point of the exact date of the accrual of the debt, there is neither allegation, nor proof, and the plain tiffs must accordingly be treated as subsequent creditors.
 "rhe money which Norwood col lected for his wife was rightfully hers and could have been secured to her use by an investment in real estate in her own name, or by an invest ment in personal property, a sched- ule of which was recorded in the county of her residence or, possi- bly,, if it was desirable to keep it in money or choses in action, by hold ing it separately from that of her husband It was her separate prop erty as long as she chose to preserve it's distinctive character. and did not trust it's management or control to him otherwise than as an agent,
 There is nothing to show that Norwood, III the investments he made acted as his wifes agent. On the contrary, he purchased lands for his own benefit and dealt with her money as his own for a period of more than ten years, and obtained credit on the faith of its being hls own. Mrs. N0rwood is not shown to have ob- icctcd to such use and her assent must be presumed. It is now too late to assert her claim to the money or its proceeds against her husband $ creditors.
 If the plaintiffs debt was in eX- istencc when the transfer was made. there could not he any doubt of their right to impeach it. For every vol untary alienation of his property by an embarrassed debtor is presump- tlvely fraudulent against existing creditors. Indebtedness raises q presumption of fraud, which becomes conclusive upon insolvency. But as to subsequent creditors, q voluntary conveyance by q person in debt, Is not per SC fraudulent. To make it so. proof of actual or intentional fraud is required.
 "Thc cases have always made this distinction between the two classes of creditors. as to the burden and quantum of proof. But in the text books and in the decided cases, there Is some obscurity and perhaps con- Nict as to what are the frauds of which subsequent creditors may take advantage. Where the fraud is di- rccted specifically against them, as where voluntary settlement IS made with view to becoming subsequcnt- ] ly indebted, there can be no difficult tv. Such case was Savage V. Murphy 3i x. r., 1OS,. where the judgment debtor, being engaged m an extensive business and already considerably indebted, striped him self of the title to all his property bA transfer to his wife and children with the intent to contract future indebtedness on the credit of his ap- parent ownership of the property transferred, of which he still re. maincd in possession,
 "But is it necessary in every such attack to show a specific intent te defraud future creditors; Or may the transfer be avoided at the suit oI subsequent creditor, on proof thai it was fraud upon the rights of pre- vious creditors;
 In Tony V. McGeehee, 3a Ark.
 427. it was said \ voluntary con .oyancc may be impcached by sub
 sequcnt creditor, on the ground tha it was made in fraud of exiStin. creditors; but to do so, ne must Hho" that either actual fraud was intend
 ,d. or that there were debts still out
 standing, which the granior owed a inc time he made it..
 "As we have stated above, cred