The questions ’of law which necessarily arise in this case, are few and simple. The record is voluminous and presents us the consolidation of two cases.
In the motion for re-hearing, counsel very generously take upon themselves the responsibility of what they claim to be an erroneous decision of the case. We are satisfied, on re-examination of the ease, that the proper disposition was not made of *458it in our former opinion; but we are not willing to throw all the responsibility upon counsel, but acknowledge ourselves that our former examination of the case should have been more independent of the theory maintained by counsel.
The case presents a contest between two creditors of the estate of Levi Mercer, deceased.
W. J. Hutchins, the appellee, is endeavoring to set aside a claim of A. B. Kerr the appellant, on the ground of fraud.
Levi Mercer was indebted to one Glenn, by note, to the amount of five or six thousand dollars, and the note appears to have been secured upon his homestead.
The freedom of the slaves, with other concurrent causes, appears to have led to some embarrassment in the affairs of Mercer. Glenn required the payment of his note, and Kerr, who was the son-in-law of Mercer, came forward and purchased the note from Glenn, paying him in lands, cattle, and money. The note was assigned to Kerr. Mercer was present at the transaction between Glenn and Kerr, and Glenn’s testimony on the trial seems to throw some suspicion on the transaction, and it was no doubt upon this evidence the jury found their verdict; and in our great reverence for the verdicts of juries, in our former opinion we did not disturb their finding. But this verdict is so manifestly against the evidence that we would be compelled to reverse the judgment on this ground alone, if there were none other.
But we find that after the consolidation of the two cases Mos. 2163 and 2166, the demurrer to the petition was overruled, and this we think was error.
Hutchins does not make out a case upon his petition which would entitle him to have Kerr’s claim set aside, even if the claim were fraudulent, for he does not show that Mercer’s estate is insolvent or unable to pay all the just debts against it, including both his own and Kerr’s. If no third parties are affected by the arrangement or trade between Glenn and Kerr, no one has a right to complain; and if Mercer’s estate is solvent, Hutchins would- have no right to complain against Kerr, if *459Mercer had paid the Glenn note himself and presented it to Kerr to hold against him.
But the evidence clearly establishes the fact that Kerr gave up a large amount of property to Glenn in payment of the note; and if Mercer had paid some portion of the note, and his estate were now insolvent, his creditors could only claim to have a pro tanto amount of the note set aside, unless actual fraud on the part of Kerr, in taking the assignment -of the note to himself, were clearly proven. We can discover no act of the parties from which fraud is to be presumed.
The judgment of the District Court is therefore reversed and the cause remanded.
The former opinion of this court is withdrawn.
Reversed and remanded.