alleged to be fraudulent, have the right to interfere to set it aside; strangers without interest cannot do it. Yeend v. Weeks, Ala. (16 So. Rep. 165). In an action brought by an assignee or receiver of an insolvent under the provision of Minn. Gen. Laws 1881, ch. 148, § 4, to annul and avoid a conveyance of realty by his insolvent as fraudulent, such insolvent is not a necessary party defendant. Williamson v.

Selden, 53 Minn. 73 (54 N. W. Rep. 1055). In a suit to set aside as fraudulent, a deed executed by one of two joint judgment debtors, the other judgment debtor is not a necessary party. Quinn et al. v. People, 146 Ill. 275 (34 N. E. Rep. 148). A person to whom land is conveyed, in an action for a rescission for fraud, is a proper party defendant, though he had no knowledge of the fraud. Ross Admr. et al. v. Hobson

et al., 131 Ind. 166 (26 N. E. Rep. 775). If a defendant, who is a party to a fraudulent transaction, die pending suit for a rescission, his administrator may be substituted. Ross Admr. et al. v. Hobson et al., 131 Ind. 166 (26 N. E. Rep. 775). Where, pending the action, the plaintiff's debt is paid by the endorser of the notes representing it, and the notes delivered to him, the plaintiff parts with all his interest in the subject matter of the action, and such endorser cannot continue the prosecution of the suit in the name of the original plaintiff. Campbell v. Shipman, 87 Va. 655 (13 S. E. Rep. 114). The fraudulent grantor, as well as grantee, should be made a party. Huneke v. Dold, N. M. (32 Pac. Rep. 45). The wife of a fraudulent grantor is not a proper party defendant where the property belonged to him, but the wife of the fraudulent grantee is. Tatum v. Roberts, Minn. (60 N. W. Rep. 848). A person acting as a mere conduit through whom a fraudulent conveyance passes, is not a necessary party. Bomar et al. v. Means et al., 37 S. C. 520 (16 S. E. Rep. 537). In an action brought to set aside a trust deed as fraudulent on account of its being made to prefer creditors the beneficiaries must be made parties. Simon v. Ellison et al., 90 Va. 157 (17 S. E. Rep. 836).

Sec. 367. Action by the state-Return of execution-Priorities. In West Virginia it is held that where a bill is filed by the state to set aside a fraudulent conveyance

made by its judgment debtor, and to subject land in the hands of the fraudulent grantee to the payment of its judgment, it is not necessary that an execution should have issued on said judgment, and that a return of nulla bona should be had, before such bill can be sustained. Neither is it necessary to convene the creditors of such judgment debtor, or to allege and show that the rents, issues, and profits of the land sought to be subjected will not pay the debt in five years. In such a suit it is unnecessary to ascertain the liens existing upon the land before making the distribution of the proceeds of a sale of land made therein, and the party filing the bill and setting aside the conveyance is entitled to the first satisfaction out of such proceeds, unless there are prior liens. In such a suit the state stands upon the same footing with any other creditor, as to enforcing its lien in equity against the land of a fraudulent grantee. State v. Bowen et al., 38 W. Va. 91 (18 S. E. Rep. 375).

Sec. 368. Fraudulent character of a conveyance may be shown in an action of ejectment. A deed made to hinder, delay or defraud creditors is void at law as well as in equity; and where a debtor holding the legal title to land makes a conveyance thereof in fraud of his creditors, the purchaser at a sheriff's sale, made by virtue of a creditor's judgment, may sue in ejectment; and in such a suit he may defeat the fraudulent conveyance by proof of its fraudulent character. The fraudulent deed being thus declared void from the beginning, the sheriff's deed carries the title. Potter v. Adams, Mo. (28 S. W. Rep. 490).

Sec. 369. Sufficiency of complaint. Where the complaint avers the insolvency of the grantor, that the conveyance was made without consideration and with intent to defraud, to hinder and delay creditors, it is sufficient. Where, in the complaint, there is an omission of allegations not jurisdictional and it is not objected to in the court below, and evidence of the omitted facts is introduced without objection, and the court in its finding finds such facts to be true, the defect in the complaint cannot be urged for the first time in the appellate court. Paulson et al. v. Ward et al., Dak. (58 N. W. Rep. 792); Threlkel v. Scott,

N. Cal.

(34 Pac. Rep. 851). In a recent case the supreme court of Alabama say: "As to averments charging fraud, it is well settled, that complainant is not bound to aver all his matters of evidence tending to establish fraud, but he must show with accuracy and clearness matters essential to his right of recovery, and these must not be left to depend on inference or on general or ambiguous averments." Williams v. Spragins,

Ala. (15 So. Rep. 247). Under S. Dak. Comp. Laws, § 4659, which provides that in cases of fraudulent conveyance, "the question of fraudulent intent is one of fact, and not of law," it is held that it is sufficient to allege that the conveyance was made with intent to delay and defraud the grantor's creditors. Probert v. McDonald, 2 S. Dak. 495 (51 N. W. Rep. 212; 39 Am. St. Rep. 796). The complaint must correctly describe the land, and a mistake in the complaint which is carried forward into the decree will not be reformed as against one who has innocently acquired rights to the property. Boggs v. Douglass et al., Ia. (56 N. W. Rep. 412). It is not necessary to state the value of the land, though such statement is proper. Ross, Admr. et al. v. Hobson et al., 131 Ind. 166 (26 N. E. Rep. 775).

Sec. 370. Proof in actions to set aside. Fraud will not be presumed, Ball v. Phenicie, 94 Mich. 355 (53 N. W. Rep. 1114); but it may be inferred from facts and circumstances which are of such a character as to lead a reasonable man to the conclusion that the conveyance was made with an intent to defraud. Sturm v. Chalfant et al., 38 W. Va. 248 (18 S. E. Rep. 451); Eichenberg v. Marcy, R. I. (26 Atl. Rep. 46); Reynolds' Adm'rs v. Gawthrop's Heirs, 37 W. Va. 3 (16 S. E. Rep. 364); Knapp et al. v. Day, 4 Colo. App. 21 (34 Pac. Rep. 1008). . The burden of proof is upon the person attacking the deed. Reynolds' Adm'rs v. Gawthrop's Heirs, 37 W. Va. 3 (16 S. E. Rep. 364); Newman v. Mahoney et al., 44 La. An. 423 (10 So. Rep. 766); Lauer v. Kuder, Ill. (34 N. E. Rep. 484). Fraud need only be established by a preponderance of the evidence. Reynolds v. Weinman, Tex. (25 S. W. Rep. 33); and it is error for the court to instruct that the burden is upon the party attacking a fraudulent conveyance to show its fraud

ulent character "by clear and satisfactory evidence." Rider v. Hunt, Tex. (25 S. W. Rep. 314). Where the action is by one creditor of an insolvent debtor to set aside a conveyance by him to another creditor the burden is upon the latter to establish the justness and amount of his indebtedness and the adequacy of the consideration. Page et al. v. Francis, 97 Ala. 379 (11 So. Rep. 736). In order to set aside a conveyance made to secure an honest indebtedness it must be shown that the grantee actually participated in the fraud. Paulson et al. v. Ward et al., N. Dak.

(58 N. W. Rep. 792); Nadal et al. v. Britton, 112 N. C. 180 (16 S. E. Rep. 914); Haynes v. Rogers, 111 N. C. 228 (16 S. E. Rep. 416); Zick v. Guebert, 142 Ill. 154 (31 N. E. Rep. 601). Contra, Knapp et al. v. Day, 4 Colo. App. 21 (34 Pac. Rep. 1008). Acts and declarations of the debtor, tending to prove fraudulent intent are admissible. Claflin et al. v. Ballance et al., 91 Ga. 411 (18 S. E. Rep. 309); Ross, Adm'r et al. v. Hobson et al., 131 Ind. 166 (26 N. E. Rep. 775). All of the circumstances affecting the transaction are admissible, and the grantee of an insolvent debtor is bound to take cognizance of the effect which the transfer will have upon the debtor's ability to pay his debts. Karl v. Kuhn, 38 Neb. 539 (57 N. W. Rep. 379).

Under the Kansas statute an assignee for creditors may maintain a suit to set aside fraudulent conveyances made by the assignor. Walton v. Eby et al., 53 Kan. 257 (36 Pac. Rep. 332). In Indiana the rule is the same. Hutchinson v. First National Bank of Michigan City, 133 Ind. 271 (30 N. E. Rep. 952; 36 Am. St. Rep. 537). Citing, Barker v. Barker's Assignee, 2 Woods C. C. 87; In re Leland, 10 Blatchf. 503 ; Hildeburn v. Brown, 17 B. Mon. (Ky.) 779. The evidence must show that the conveyance was made with an intention to defraud creditors. Clark v. Olsen et ux., Cal (33 Pac. Rep. 274); and fraud is a question of fact and not of law. Daugherty v. Daugherty, 104 Cal. 221 (37 Pac. Rep. 889); Knox v. Moses, 104 Cal. 502 (38 Pac. Rep. 318); Hutchinson v. First National Bank of Michigan City, 133 Ind. 271 (30 N. E. Rep. 952; 36 Am. St. Rep. 537). The omission to record the deed is a circumstance which may be considered. Reynolds' Adm'rs v. Gawthrop's Heirs, 37 W.

Va. 3 (16 S. E. Rep. 364); Day & Bailey v. Goodbar et al., 69 Miss. 687 (12 So. Rep. 30); Adams v. Curtis, Ind.

Flem

(36 N. E. Rep. 1095). But the mere withholding from the record of a mortgage given for full consideration, lest it might injure the credit of the mortgagor, is not of itself sufficient evidence of an intent on the part of the mortgagee to hinder, delay, or defraud creditors of the mortgagor. ington National Bank v. Jones et al., 50 N. J. Eq. 244 (24 Atl. Rep. 928). See opinion for collation and citation of authorities. This case is supported by Hutchinson v. First Nat'l Bk., 133 Ind. 271 (30 N. E. Rep. 952; 36 Am. St. Rep. 537). The fact that an obligation which is the pretended consideration for the conveyance is barred by the statute of limitations may be shown, Sturm v. Chalfant et al., 38 W. Va. 248 (18 S. E. Rep. 451); and so may the fact that the grantee does not return the property for taxation. Shober et al. v. Wheeler et al., 113 N. C. 370 (18 S. E. Rep. 328).

The fact that the parties to the conveyance are near relatives will not of itself make it fraudulent. City Nat. Bank v. Bridges, 114 N. C. 383 (19 S. E. Rep. 666); Bierne et al. v. Ray et al., 37 W. Va. 571 (16 S. E. Rep. 804); Steel v. De May, Mich. (60 N. W. Rep. 684); Robinson v. Dryden, 118 Mo. 534 (24 S. W. Rep. 448); Mills v. Hunt, Ky. (15 S. W. Rep. 518); but it is a proper circumstance to be considered. Reynolds' Adm'rs v. Gawthrop's Heirs, 37 W. Va. 3 (16 S. E. Rep. 364); Bierne et al. v. Ray et al., 37 W. Va. 571 (16 S. E. Rep. 804); Hicks et al. v. Sharp, 89 Ga. 311 (15 S. E. Rep. 314); O' Conner Min. & Manufg Co. v. Coosa Furnace Co. et al., 95 Ala. 614 (10 So. Rep. 290); Reeves v. Skipper, 94 Ala. 407 (10 So. Rep. 309). And it is proper to instruct the jury that the law looks with suspicion upon a conveyance by a debtor to his relatives to secure an alleged pre-existing indebtedness. Allen v. McLendon et al., 113 N. C. 321 (18 S. E. Rep. 206). A conveyance of the property of a corporation to another corporation represented by the same directors is not of itself fraudulent. O' Conner Min. & Manuf'g Co. v. Coosa Furnace Co. et al., 95 Ala. 614 (10 So. Rep. 290). It is sufficient to show that the conveyance deprived the debtor of the necessary means to pay the judgment, and was without a valuable consideration. Schaible