568). The court say, "We get the law on this question from the adoption of the Kansas statute, and that has been many times construed in that state to mean that a party, although he has no right to the possession, yet may not be ousted fron such possession by force, and, if he is ousted by force, he can recover the possession which he actually had by forcible entry. and detainer proceedings. The doctrine of our statute is thus stated by Mr. Chief Justice Horton, of the supreme court of Kansas, in the case of Peyton v. Peyton, 34 Kan. 624 (9 Pac. Rep. 479) It was unnecessary for the plaintiff to state that she was the legal and equitable owner of the premises. It is only necessary for her to allege that she had the actual and peaceable possession thereof. An action may be maintained against any person who commits a forcible entry and ouster, even though the latter is the owner of the property, and entitled to immediate possession, if the plaintiff had, at the time of the forcible ouster, the actual and peaceable possession thereof. Campbell v. Coonradt, 22 Kan. 704; Conaway v. Gore, 27 Kan. 127; Burdette v. Corgan, 27 Kan. 275; Buettinger v. Hurley, 34 Kan. 585 (9 Pac. Rep. 197); Emsley v. Bennet, 37 Iowa, 15.' This doctrine obtains in the state of Nebraska, under a statute similar to ours. There, in the case of Brown v. Feagins, 37 Neb. 870 (55 N. W. Rep. 1048), it is held: 'An action for the forcible detention of real property may be maintained by one whose complete possession thereof has been ended by the wrongful entry of another, even though such entry was made under claim of a paramount title.' This doctrine is also maintained by the supreme court of the United States in the case of Railroad Co. v. Johnson, 119 U. S. 608 (7 Sup. Ct. Rep. 340). This was an action of forcible entry and detainer, brought in the United States district court in Arkansas, and taken on appeal to the supreme court of the United States. In this case Mr. Justice Miller, speaking for the court said: The general purpose of these statutes is that, not regarding the actual condition of the title to the property, where any person is in the peaceable and quiet possession of it, he shall not be turned out by the strong hand, by force, by violence, or by terror. The party so using force and acquiring possession may have the superior title, or may have the better right, to the present possession, but the policy of the law in this class

of cases is to prevent disturbances of the public peace, to forbid any person righting himself in a case of that kind by his own hand and by violence, and to require that the party who has in this manner obtained possession shall restore it to the party from whom it has been so obtained; and then when the parties are in statu quo, or in the same position as they were before the use of violence, the party out of possession must resort to legal means to obtain his possession, as he should have done in the first instance. This is the philosophy which lies at the foundation of all these actions of forcible entry and detainer, which are declared not to have relation to the condition of the title or to the absolute right of possession, but to compelling the party out of possession, who desires to recover it of a person in the peaceable possession, to respect and resort to the law alone to obtain what he claims."

Sec. 345. Practice-Statutes construed. Unless the statute so provides title can not be tried in an ordinary action of forcible entry and detainer. Hamill v. Bank of Clear Creek Co., 22 Colo. 384 (45 Pac. Rep. 411). Citing, Beeler v. Cardwell, 29 Mo. 72 (77 Am. Dec. 550); Johnson v. Baker, 23 Ill. 98. Where the plaintiff claims under a deed from the defendant which contains certain reservations as to the right of possession it is admissible in evidence to show the rights of the plaintiff. Gale v. Eckhart, 107 Mich. 465 (65 N. W. Rep. 274). Proof that the defendants entered June 26th where the complaint alleges that they entered on July 14th is not a material variance, but the allegation that they were in continuous possession from May 1st, 1893, is negatived by a finding that they "took possession on June 26, 1893." Amador Gold Mine v. Amador Gold Mine, 114 Cal. 316 (46 Pac. Rep. 80). Applying Ala. Code, § 3389, forbidding the merits of the title to be inquired into in the action, it is held that a tenant cannot defend an action by his landlord for unlawful detainer by showing that the latter's title has passed to another by the foreclosure of a prior mortgage to whom the tenant has lawfully attorned; the enforcement of a judgment, which included an award of damages, rendered against a tenant on account of his inability to make this defense cannot be enjoined although the holder of the judgment is insolvent. Coleman,

J., dissenting. Davis v. Pou, 108 Ala. 443 (19 So. Rep. 362). Ala. Code, § 3390, applied-three years' possession as a defense-directing verdict. Barefoot v. Wall, 108 Ala. 327 (18 So. Rep. 823). Sund. & H. Ark. Dig., § 3458, 3459, construed and applied-judgment for damages-bond. Richardson v. Harrell, 62 Ark. 469 (36 S. W. Rep. 573). Mills' Ann. Colo. Stat., § 1973, subd. 6, applied-trial of title in actions of forcible entry and detainer. Hamill v. Bank of Clear Creek Co., 22 Colo. 384 (45 Pac. Rep. 411). Conn. Gen. Stat., §§ 1355, 1356, construed and applied-action of summary process-sufficiency of notice-pleading and proof. Miller v. Lampson, 66 Conn. 432 (34 Atl. Rep. 79). McClain's Iowa Code, § 3190, applied-sufficiency of complaint-allegation of notice to quit. Waller v. Vermitt, 97 Ia. 518 (66 N. W. Rep. 763). Ky. Civ. Code, § 454, applied -sufficiency of description of the premises. Trent v. Colvin,

Ky. (35 S. W. Rep. 914). Under Miss. Code 1892, § 4475, a judgment in an action of forcible entry and detainer will not bar a subsequent action for trespass. Richardson v. Callihan, 73 Miss. 4 (19 So. Rep. 95). Under the forcible detainer act of Oklahoma all defenses may be interposed under a general denial, and it is not error to strike out a special answer although it pleads a good defense. Oklahoma City v. Hill, 4 Okla. 521 (46 Pac. Rep. 568). A lessor's right to obtain possession under the forcible entry and detainer statute of Washington (Laws 1891, p. 179) is not barred by a prior appointment of a receiver in an action to foreclose a mortgage on the lessee's interest, to which the lessor was unnecessarily made a party, where the notice to surrender possession was served on the lessee before such appointment was made. Woodward v. Winehill, 14 Wash. 394 (44 Pac. Rep. 860).

FRAUDULENT CONVEYANCES.

EPITOME OF CASES.

Sec. 346. As to what constitutes a fraudulent conveyance. The law will not permit a debtor in failing cir cumstances to sell his land, and convey it by deed without reservations, and yet secretly reserve, to himself the equity of redemption for his own use and benefit. Such a transfer lacks the element of good faith and is fraudulent as to his creditors, although made for a valuable consideration. Neubert v. Massman, 37 Fla. 91 (19 So. Rep. 625). It is held that a general assignment for the benefit of creditors which. ties up the debtor's property for an unreasonable length of time, will be held void as a fraudulent conveyance hindering and delaying creditors. Farmers' & Traders' Bank v. Martin, 96 Tenn. 1 (33 S. W. Rep. 565). A conveyance made by a debtor for the express purpose of protecting his interest in the property against a pending suit is fraudulent and void as against the plaintiff in that suit, and equally fraudulent and void as against the debtor's assignee in insolvency. Thompson v. Robinson, 89 Me. 46 (35 Atl. Rep. 1002.) Where a mortgage covers a stock of merchandise, and also real estate, and is constructively void as to the goods, on account of the mortgagor's permission to continue in possession and sell the goods in the usual course of trade, but there is no fraudulent intent in fact in the execution of the mort

gage, it will be valid as to the real estate. Rogers v. Munnerlyn, 36 Fla. 591 (18 So. Rep. 669). A sale or mortgage for a valuable consideration may be upheld as valid although the seller or mortgagor intended by the transaction to delay or defraud his creditors. Where it is not shown that the purchaser or mortgagee participated in the fraudulent purpose, the knowledge on the part of a purchaser, of the seller's purpose to perpetuate the fraud on his creditors is held to vitiate the sale, although the intent of the former was to secure

a valid debt due him. Wolf v. Arthur, 118 N. C. 890 (24 S. E. Rep. 671). A conveyance made expressly to defraud the grantor's creditors may be set aside regardless of the condition of his estate. Wilson v. Spear, 68 Vt. 145 (34 Atl. Rep. 429). Citing, Wadsworth v. Williams, 100 Mass. 126; Hager v. Shindler, 29 Cal. 47; Westerman v. Westerman, 25 Ohio St. 500; Gormley v. Potter, 29 Ohio St. 597; Vasser v. Henderson, 40 Miss. 519 (90 Am. Dec. 351); Edmunds v. Mister, 58 Miss. 765. A deed of trust executed by an insolvent corporation to secure an issue of its bonds cannot be set aside as against persons taking such bonds to secure debts owing to them by the corporation, without any notice that the deed was fraudulent. Coal City Coal & Coke Co. v. Hazard Powder Co., 108 Ala. 218 (19 So. Rep. 392).

Sec. 347.

As to what constitutes insolvency. The Texas statute, Rev. Stat. 1895, art. 2545, provides that "every gift, conveyance, assignment, transfer or charge made by a debtor, which is not upon consideration deemed valuable in law, shall be void as to prior creditors unless it appears that such debtor was then possessed of property within the state subject to execution sufficient to pay his existing debts; but such gift, conveyance, assignment, transfer or charge shall not on that account merely be void as to a prior creditor, because voluntary it shall not for that cause be decreed to be void as to subsequent creditors or purchasers." Construing this statute it is held that where the title to the property claimed to be retained by the debtor is apparently in another, such property will not be considered for the purpose of establishing his solvency. Walker v. Loring, 89 Tex. 668 (36 S. W. Rep. 246). The court say: "The purpose of the statute is the protection of creditors against voluntary conveyances by their debtors. It is based upon the maxim that a man must be just before he is generous. It denounces a voluntary conveyance as fraudulent and void against existing creditors with one exception, and that is that he still retains sufficient property from which the creditors may make their debts by due process of law. It does not mean that the conveyance is valid if the property, at a fair market value, is sufficient to cover the debts. Nor does it mean that it is enough merely