From the opinion given at the general term it would appear that a new trial was granted on the ground that, from the facts found by the referee relating to the transfer of the property in 1855, the law presumed that transfer to have been fraudulent as to the plaintiff as a creditor of Eckler, and that, therefore, the referee's conclusion of fact, that such transfer was not fraudulent, was erroneous. This, I think, was a mistake. There cannot properly be said to be any such presumption of law from the facts found by the referee, even assuming that such transfer was entirely voluntary; that Mrs. Eckler was not a creditor of her husband to any amount, and that the plaintiff was a creditor of his to the amount of his judgment at the time of such transfer. Fraud implies a fraudulent intent, and is an inference or conclusion of fact drawn from the facts or circumstances of the particular transaction. If it is a presumption, it is a presumption of fact, and not of law. (1 Greenl. Ev., §§ 44, 48.) When a party is charged with fraud, the presumption of law is, that he is innocent until it *Page 632 has been shown that he is guilty. (1 Greenl. Ev., § 80.) The circumstances to show fraud, and the circumstances to rebut it, are arguments on the question of fraud, and a conclusion on the question of fraud is a conclusion of fact arrived at by weighing those arguments.
If the necessary consequence of a conceded transaction was defrauding another, then, as a party must be presumed to have foreseen and intended the necessary consequences of his own act, the transaction itself is conclusive evidence of a fraudulent intent; for a party cannot be permitted to say that he did not intend the necessary consequence of his own voluntary act. Intent or intention is an emotion or operation of the mind, and can usually be shown only by acts or declarations, and as acts speak louder than words, if a party does an act which must defraud another, his declaring that he did not by the act intend to defraud, is weighed down by the evidence of his own act. But in such a case it is not proper to say that there is a presumption or conclusion of law that the transaction is fraudulent; but it is proper to say that the circumstances of the transaction, or the transaction itself, is conclusive evidence of fraud; and if in such a case, against such evidence, a jury or referee should find that there was no fraud, a new trial would be granted, not because any legal presumption or conclusion had been violated, but because the finding was against the weight of evidence; against conclusive evidence.
In Reade v. Livingston (3 John. Ch., 500, 501), Chancellor KENT held that a voluntary conveyance was presumed to be fraudulent as against all existing debts, without regard to their amount, or the extent of the property conveyed or retained by the grantor: that the presumption of fraud in such case was a presumption of law, and could not be repelled by proof of circumstances going to show that in fact there was no intention to defraud. This decision assumed, as a principle of law, that a voluntary conveyance was void as to any and all then existing creditors, without regard to the question of intention, because it might ultimately operate to defeat the collection or payment of their debts. A similar doctrine was held by the Chancellor *Page 633 in Bayard v. Hoffman (4 John. Ch., 450). It is not important now to inquire how far this doctrine was supported by the cases cited by the Chancellor. Certainly, Lord MANSFIELD held a different doctrine in Cadogan v. Kennet (Cowp., 434). A different doctrine was held in Jackson v. Town (4 Cow., 599), and by Judge SPENCER in Verplanck v. Sterry (12 John., 556, 557), though perhaps not decided in the case. In this case Judge SPENCER said: "If the grantor be not indebted to such a degree as that the settlement will deprive the creditors of an ample fund for the payment of their debts, the consideration of natural love and affection will support the deed, although a voluntary one, against his creditors; for, in the language of the decisions, it is free from the imputation of fraud." In Jackson v. Seward (8 Cow., 406), it was held by the Court of Errors that a conveyance or settlement, in consideration of blood and natural affection, though by one indebted at the time, was prima facie only, and not conclusively fraudulent. Subsequently, by section 4, of title 3, chapter 7, part 2 of the Revised Statutes (2 R.S., 137), it was declared that the question of fraudulent intent, in all cases arising under the provisions of that chapter, should be deemed a question of fact; and that no conveyance or charge should be adjudged fraudulent as against purchasers or creditors, solely on the ground that it was not founded on a valuable consideration. The question in this case arises under the provisions of this chapter of the Revised Statutes, which treats "of fraudulent conveyances and contracts, relative to goods and chattels and things in action." No decision or series of decisions, then, can make the question of fraud in this case a question of law, or establish that there is a legal presumption of fraud from the facts and circumstances found by the referee; for the statute declares that the question of fraud shall be deemed a question of fact, and by declaring it to be a question of fact, in effect declares that there is no such legal presumption. No decision or series of decisions can repeal a statute. The statute substantially declares, and was intended to declare, the doctrine held in Jackson v. Seward. (8 Cow.) *Page 634
The question of fraud, then, in this case, was a question of fact, for the referee to decide under all the circumstances of the case; and looking at the facts and circumstances specially found by him and on which he decided it, particularly the fact that Eckler did not transfer to his wife all his property in 1855; that he retained in available securities more than six times the amount of the debt of the plaintiff, even as it was established more than three years afterwards; that he was not indebted to any one at the time of such transfer except the plaintiff; I do not see how the general term could grant a new trial in this case without disregarding the statute, and returning to the doctrine of Chancellor KENT in Reade v.Livingston.
I think the doctrine of Hinds' Lessees v. Longworth (11 Wheat., 199); of Jackson v. Post (15 Wend., 588); of Salmon v. Bennet (1 Conn., 525), is substantially the doctrine of Judge SPENCER in Verplanck v. Sterry (supra), and that doctrine certainly does not interfere with the conclusion of fact, to which the referee arrived as to the transfer of the property in 1855. The question really is, and must be in such cases, considering the amount of debts and the value or amount of the property retained, and all the other circumstances of the case, is the conveyance or transfer fraudulent?
I think, in this case, the facts and circumstances and the law justified the referee's conclusion; but if the general term thought he might have come to a different conclusion, I do not see upon what principle they granted a new trial. The view I have taken of the question has been the most favorable for the respondents, for I have assumed the transfer of the property to Mrs. Eckler, in 1855, to have been voluntary; but I am inclined to think that, on the facts found by the referee, Mrs. Eckler in equity would have been deemed a creditor of her husband to the amount of $3,500. My conclusion is, that the order of the general term, granting a new trial, should be reversed, with costs.
SMITH, J., dissented; SELDEN, Ch. J., did not sit in the case.
Judgment at special term affirmed. *Page 635