On the 11th December, 1893, Simmons, Durham & Co., recovered a judgment against E. A. Little, upon which an execution was issued on the 13th day of November, 1895. This execution was levied on the 21st of November upon a certain lot of furniture as the property of the defendant. The City Furniture Company claimed the property levied upon, and gave bond for the trial of the right of property. The real question at issue was whether E. A. Little, the defendant in execution, or his wife C. S. Little was the owner and proprietor of the property and business of the City Furniture Company, and carried on a mercantile business in that name. When the officer entered the store, he ' found E. A. Little in possession and in charge, apparently, as the owner, but he at the time disclaimed ownership, and stated that the goods belonged to his wife -C. S. Little ; and he was in charge of the store and bussiness as her agent and manager. Prior to January, 1893, the furniture business carried on at the same place belonged to S. R. Bains. -On the 17th of January, 1893, Bains sold out the entire business to W. H. Null and O. W. Wilson, and either E. A. Little, the defendant in execution, or to him as agent for C. S. Little, the real claimant. The firm thus composed, adopted the name of The City Furniture Company, and under this name the busines has contined to the present time. On June 5th, as shown by the bill of sale, W. EL Null retired and sold his interest to The City Furniture Company. *441and on the 4th of September 1893, O. W. Wilson retired and sold his interest to The City Furniture Company. By these two transfers and sales, only one member of the firm remained, which continued the business in the name of The City Furniture Company ; and the question is, whether that member, at the time of the levy, was the defendant in execution or his wife, C/ S. Little. The court determined the issue, without the intervention of a jury, in favor of the plaintiff.
The original purchase from Bains occurred in Januaary, 1893, and the purchase from Null and Wilson occurred, respectively, in June and September, 1893. The plaintiff recovered judgment in December, 1893, some months after each of these transactions. A judgment is not evidence of a-n indebtedness prior to its rendition. All the evidence in the abstract tending to show that E. A. Little was indebted to plaintiff prior to the date of the rendition of the judgment is .to be found in the statement of the witness Haley, “that the account on which the judgment was rendered, was placed in his hands for collection a month or two before suit was brought thereon.” This is insufficient to show that plaintiffs were existing creditors prior to or at the time of any of the several transactions with Bains, or the two members of the firm, Null and Wilson. A sale or transfer of property cannot be assailed successfully by a subsequent creditor of the vendor or grantor, except upon proof of actual fraud. Notwithstanding Wilson testifies that he sold to E. A. Little, the bill of sale executed by him is made to E. A. Little as the agent of Mrs. C. S. Little, and to the same effect is the testimony and bill of sale of the witness Null. This witness testifies that at the time of his sale, he did not execute a bill of sale in writing, but that some time after it was sent to him for signature ; and it was made in favor of E. A. Little as .the agent of C. S. Little. Wilson testifies that “he heard E. A. Little say that Mrs. Little’s money went into the business, but that he understood he borrowed it from her.” Null would not deny that E. A.. Little told him that his wife’s money was in the business. That C. S. Little in her own right had five hundred dollars in bank to her credit, which was deposited to the credit of The City Furniture Company, and went into that business at the time of the purchase from Bains, we think very satisfac*442torily established. That neither Null nor Wilson contributed any more is also established. That all subsequent payments and increases in the business accrued from collections of accounts purchased from Bains and from sales of merchandise in stock, is established beyond controversy. It matters not who Bains sold to or who Null and Wilson regarded as their partners. It is evident that before the accrual of plaintiff’s debt, O. S. Little became the sole owner of the City Furniture Company. The transfer and sale to E. A. Little as the agent of C. S. Little by both Null and Wilson is shown by the bills of sale. The investment of five hundred dollars of the money of C. S. Little at the formation of the partnership is shown by the books of the bank, and that E. A. Little and C. S. Little kept separate bank accounts is also established without controversy, and the declaration of E. A. Little at the time of the levy that the property belonged to C.'S. Little leads to but one conclusion.
The only opposing evidence consists in statements made by E. A. Little, made by him in the absence of O. S. Little, and without her knowledge, and were admissible only to contradict and impeach his testimony. Considering only the legal evidence, we are constrained to a different conclusion from that reached by the trial court.
A judgment will be here rendered annulling the judgment of the trial court, and one will be rendered in favor of the claimant.
Reversed and rendered.