(concurring specially). The defendant was resisting an action in ejectment, and the court refused to allow an amendment offered by him to his plea, which amendment set up that the deed from him, upon which plaintiff relied for a recovery, was given without other consideration than to place the title in the grantee therein until the defendant could pay a debt of $16 owing to a certain 'Creditor, which debt he did pay a few days thereafter, and that the plaintiff took his deed from this grantee with knowledge of these facts. The court also refused to allow the defendant to introduce evidence for the purpose of defeating a recovery, the evidence offered being in substance the same as the allegations contained in the amendment which the court rejected. The writer can not agree to these rulings, which are based upon the decision that it should be held, as a matter of law, from the existence of the facts alleged, that the intention of the maker of the deed was to hinder, delay, or' defraud his creditor, but concurs in the other rulings made in the case.
An assignment by a debtor of a part or all of his property with an agreement with the assignee that the latter is to hold the property until the assignor pays his debts to one or all of his creditors, though the purpose of the assignment is not mentioned therein, does not necessarily mean that the intention of the debtor in making the assignment was to hinder, delay, or defraud the creditor or creditors. His intention may have been the contrary. When a debtor makes a deed to one, with the agreement that the latter is to hold the title to the property conveyed until the debtor pays a certain creditor an obligation, it can not be said, os a matter of law, what the intention of the debtor was. The fact that a transaction is unusual, or even illegal, does not necessarily mean that the intention of the parties thereto is fraudulent. Where a debtor, wealthy or poor, conveys a part, or all of his property, it can not be said, as a matter of law, that he does so with intention to defraud, hinder, or delay a creditor, simply because he had an agreement with the grantee that the latter was to hold the property conveyed until the creditor was paid. It does not appear from the proffered amendment or evidence that the grantee was related to the debtor, or that the debtor was insolvent, or that he did not have much other property with which to pay this small debt, nor that the agreement that the grantee was to hold the title *535to the land until the creditor was paid was to be kept a secret from the creditor, or any one else. The above-recited facts, the amount of the land conveyed, the improvements thereon consisting of a dwelling-house, the small amount of the debt owing by the debtor, and the fact that he did actually pay the debt in a few days, and all the other facts and circumstances of the transaction, were to be considered in determining what was the intention of the debtor in making the deed. When a deed is made, and a state of facts or circumstances is given, it is a matter of inference from them whether or not it was the intention of the parties to the deed to defraud creditors of the maker. This inference is to be drawn by the jury, and not by the court. The rule is -announced in 2 Moore on Fraudulent Conveyances, 570, in the following language: “The nature of the intent ordinarily will not be presumed as a matter of law, but must be inferred by the jury from the facts in evidence.” The opinion of the court can not be substituted for that of the jury. The intention of the debtor was locked in his own breast, and can only be judged of from facts and circumstances, and his intention is purely one of fact to be determined by the jury from such facts and circumstances. The debt- or nowhere in the amendment disallowed, or the evidence excluded, says his intention was to hinder, delay, or defraud his creditor. Even if it be conceded that the probable effect of his conduct was to delay, or hinder, or defraud the creditor, it can not be said as a matter of law that it was his intention to do so. This doctrine is clearly announced in Nicol v. Crittenden, 55 Ga. 497, the first three heaclnotes of which case are as follows: “1. While it is true, in general, that a man is presumed to intend the natural and probable consequences of his own acts, it is not true that he is presumed to intend all their necessary consequences. Consequences may be necessary, and yet quite remote and unexpected.
2. That a given act was followed necessarily by delay to creditors, in the particular case, however strong as a circumstance to be weighed by the jury, is not ground for presuming, as matter of law, that it was intended to have that effect. 3. It is impossible that a sale can defraud creditors, unless it was made with a fraudulent intent; and the nature of the intent will not be presumed as matter of law, but must be inferred by the jury from the facts in evidence.
*536The deed in this case was not necessarily, or in fact, followed by delay or hindrance to or fraud on the creditor. The agreement that the grantee was to hold title to the property until a certain creditor was paid by the debtor, however strong as a circumstance to be weighed bjr the jury in determining whether the intent of the debtor was to hinder, delay, or defraud, to use the language of the decision in the Nicol case, cited supra, “is not ground for presuming, as a matter of law, that it was intended to have that effect,” and “the nature of the intent'will not be presumed as'matter of law, but must be inferred by the jury.” The rule of law announced in the first headnote in the present case, that “the allegations of the pleading should be taken most strongly against the pleader,” is not to be questioned, but in connection therewith should be considered the rule of law announced in 3 Moore on Fraudulent Conveyances, 571, as follows: “A fraudulent intent can not be deduced from what the law pronounces honest; and where the circumstances attending a conveyance are consistent either with a fraudulent intent or honesty of purpose, fraud will not be imputed. ” The facts alleged are consistent with an honesty of purpose on the part of the debtor. In view of the rule of law above quoted and the decision in the Nicol case, supra, and our own statute which says, “Fraud may not be presumed,” the writer is of opinion that the court should not say, as a matter of law, the intention of the debtor was to hinder, delay, or defraud his, creditor, but the question as to whether or not such was his intention should be left to the jury. When a debtor says his only purpose in conveying a tract of land, or an árticle'of personalty, to another, was that such other person should hold the title to the property until the debtor should pay a certain debt he owed another; it is not proper to say as a matter of law that this purpose was necessarily accompanied by a purpose to hinder, delay, or defraud the creditor. The latter purpose is not a necessary companion of the former. As a matter of law, to infer the latter purpose from the former is to presume fraud from a fact which does not necessarily show it. To make such presumption, as á matter of law, is in contravention of the Civil Code, §4039, which says, “Fraud may not be presumed,” and of the rule of law announced in Willis v. Foster, 65 Ga, 83: “The existence or non-existence of fraud is peculiarly a question for the jury.”