ON REHEARING.
Smith, J.Appellee Williams has filed a very vigorous brief in support of his petition for rehearing, and challenges the correctness of some of the statements of fact contained in the opinion. And particularly does he challenge the statement that the loan secured from the Security Bank was deposited in the Arkansas National Bank, and, in support of this attack, he exhibits with his petition for rehearing the checks drawn by him on the Security Bank for the sums of money which he said he used in the construction of the buildings. These checks were not offered in evidence at the hearing below, and no opportunity was therefore afforded appellant for cross examination; but it does appear that this loan was not transferred from the Security Bank to the Arkansas National Bank, and appellee therefore insists that we have not given Mrs. Williams credit for all the money which the proof showed she had. But it does not follow that, because we were in error as to where this money-was deposited, we had not given her credit for all of the money which she was shown to have had. The important question was, “How much money did she have?” and not, “Where was the money kept?” Counsel complains also that, in addition to failing to give Mrs. Williams credit for all the money which she had, we have also fixed the cost of buildings at an excessive sum. But we do not think we have done either. It must be borne in mind that these were facts peculiarly within the knowledge of Williams, and the burden of proof was upon him to show the ownership of the money he was using, and the uses made of it. Sharp v. Fitzhugh, 75 Ark. 569, 88 S. W. 929. Notwithstanding this burden was upon him, under the law, appellant’s counsel afforded him every opportunity to make these explanations. Many questions were asked him by appellant’s counsel, which would have given him an opportunity to make the finding a mere matter of calculation, yet, in response to these questions, answers were given which in many instances were either evasive or uncandid, and in some instances more or less offensive to the interrogator. The checks now produced illustrate the difficulty of this case. We gave appellees credit for the entire $10,000 borrowed from the Security Bank as having gone into the improvements, yet the checks which are now produced aggregate something less than $8,000, and it therefore appears that a mistake of $2,000 in their favor resulted in our finding.
It may be said as to a very large part of the money said to belong to Mrs. Williams that no attempt is made to show upon which building it was spent, for Williams contented himself with the attempt to show that he came into possession of enough of his wife’s money from all sources to construct these buildings, including his residence. But we think that proof .insufficient even for that purpose.
There were a number of circumstances developed in the proof, which were not reviewed in the opinion, which, taken in connection with all the proof, were regarded as significant. One of these was the difference between the actual and the recited consideration in the deed from Williams to Gentry, in connection with the fact that the conveyance was not to Gentry, who loaned the money, but was to Gentry and his wife, who was Williams’s daughter. This is the deed which conveyed all that was left of the visible property owned by Williams, and which was made after his financial troubles had come upon him, but is said to be valid, because it was made in consideration of an existing liability and a new consideration of $5,000 in money. Appellee also attacks with much vigor the application which we make of the opinion in the case of May v. State Nat. Bank, 59 Ark. 614, 28 S. W. 431, in regard to fraudulent conveyances with reference to subsequent creditors. But we think we have made a correct application of the law of that case, as applied to the facts of this. Appellee insists that we have not, because he says that Williams could not have contemplated at the time of his conveyances to his wife that appellant would ever oppose him for office, or that he would ever become appellant’s debtor. But it is not essential that this intention to defraud exist as to any specific, subsequent creditor; for it is sufficient if it exists as to subsequent creditors generally. Here the proof is that Williams had been sheriff for a long time, in fact he had held that office until it had become almost an occupation, and by his own statement his campaigns were protracted and expensive, in fact a part of the debt which he said he owed his son-in-law was for campaign contributions, made so long prior to the date of the deed that the statute of limitations would have been available had Williams cared to plead it. The record is that during his campaign against Buchanan Williams publicly stated that he had become much involved, and his obligations amounted to as much as $45,000, and in his deposition he explained the loan made to him by his son-in-law about the time of the death of his son Johnnie on March 16, 1899, that he. was then hard up, and needed money. This loan was not only never paid, but that indebtedness was constantly increased, and it is difficult to tell from this record when Williams became insolvent; but, if the Gentry indebtedness was genuine, he must have been insolvent before the conveyances to Mrs. Williams were made. And, while he could not have known that Buchanan would oppose his election, and later successfully contest with him in the courts for the possession of the office, there is no doubt that he knew some one would do so, for he says he was always vigorously opposed, and his campaigns must have been very expensive.
A careful consideration of all the proof appears to sustain the finding that, at the time of the conveyance to his wife, Williams har conceived the purpose of placing his property beyond the reach of possible creditors and yet not beyond his own control. When asked his financial condition at the time of the conveyance to his wife, and what the purpose of that conveyance was, he said that he did not know how much he then owed, and he further said: “I wanted her to have the property, if anything happened to me. I did not know what time some crazy fellow might kill me, and I wanted her to have it as long as she lived. I wanted her to have it without any trouble, if anything happened to me. ’ ’
The judgment heretofore entered by the court must be modified. Chief Justice McCulloch and Justice Hart agree with Justice Wood and the writer that judgment was rendered here for the correct amount; but they do not agree in holding that there should be a lien declared upon the property conveyed to Mrs. Williams for any sum, while Justice Kirby is of the opinion that judgment should be rendered only for the sum of $4,783.20,° with the interest thereon, and does not agree that a lien should be declared for any greater amount.
The former judgment is therefore modified to the extent of ordering a lien to be declared against blocks 97 and 59 in favor of the appellant for the sum only of $4,-783.20, and interest.