The opinion of the court was delivered by
Kellogg, J.Two exceptions were taken to the rulings of the court below, which have been argued by counsel in this court. The first, founded upon the decision of the court excluding the testimony offered by the defendant, — the second, upon the instructions given by the court'to the jury. Upon the first question the court are not so fortunate as to be entirely agreed; and we therefore express no opinion upon that part of the case.
The court, in their charge to the jury, instructed them, “ that, if the defendant had not a fraudulent intent in taking the deed, such as would subject him to the penalty claimed in the action, still, if the intent of the Goodwins in conveying to him was fraudulent, and he was aware of that intent, by conveying the same land to Julia Wheelock the burden of proof became shifted, and it was incumbent on the defendant to prove that he executed the deed to Julia Whee-lock in good faith, and with no fraudulent purpose; and that, upon failure of such proof, he must be presumed to have conveyed away the land with intent to defraud the plaintiff! This instruction, we think,, was erroneous. It proceeds upon the ground that the conveyance',by the defendant to Julia Wheelock, cast upon him the-necessity of’ proving that the conveyance was made in good faith,, and, upon- failure of such proof, that the law raises a presumption, that he alienated the land to defraud the plaintiff, and thereby subjected himself to the-penalty for taking a fraudulent conveyance. To this proposition we-cannot accede.
In the first place, it is worthy of remark, that the gravamen of. the plaintiff’s complaint is, that the defendant fraudulently and corruptly received the deed from the Goodwins, to defraud the plaintiff; and the particular matter of the defendant’s alienation of the land; *568to Julia Wheelock was not within the issue, which was made by the parties. It is not even averred, that this alienation of the land to Julia Wheelock was made with intent to defraud anyone. This alienation, at most, would only be evidence, that the defendant justified the conveyance made to him by the Goodwins, in the manner and for the purpose for which it was made. Nor did this alienation of the land to Julia Wheelock tend to prove, that the same was done to defraud creditors; and we cannot perceive how any such legal presumption arises upon the conveyance, as seems to have been supposed by the county court. It did not, as we think, shift the burden of proof, and impose upon the defendant the necessity of showing that the conveyance was bona fide. But it is a sufficient answer to this part of the case, that it was not within the issue.
If, then, the plaintiff is entitled to recover in the present case, it must be upon the ground, that the deed from the Goodwins to the defendant was made and received with a fraudulent intent, which existed in both parties ; and this intent must be found by the jury. Brooks v. Clayes et al., 10 Vt. 37. If, in fact, the defendant took the conveyance from the Goodwins in good faith for the purpose of securing a debt due to him, he had a lawful right so to do, and he would not thereby subject himself to the penalty for a fraudulent conveyance; and, in the judgment of the court, the case should have been so put to the jury. The charge, we think, was clearly erroneous.
The judgment of the county court is reversed.