dissenting:
I regret to say that I cannot concur in the majority . opinion.
On the facts of the case, the opinion leaves out of view the following important circumstances, namely: At the time the deed in question was made the grantor still owned his saloon business, stock and fixtures therein and a lease thereon which had eighteen months to run. According to the uncontradicted testimony for appellant, on April 1, 1915, after the deed aforesaid was made, the lease was worth about $2;000 over and above the rental payable thereunder, and the grantor then owned also his fixtures, his usual stock of liquors and his horse and buggy. The grantor’s indebtedness then being only $637.57, the evidence in the case clearly shows that he retained in his hands at the time he made said deed ample property to pay his debts. That while it is true that it was known that the saloon business could not be continued longer than November 1, 1916, still there was every prospect of a thriving business in that line being done up to such date. That, hence, there was reasonable prospect that the grantor would make more than sufficient to pay his debts between the making of the deed and November 1, 1916. That his credit was good and remained so after the making and recording of said deed. That there was no evidence that either he or any of his creditors contemplated his future insolvency at the time the "deed was made and recorded. Indeed the evidence all points to the contrary. No consideration is given in the majority opinion to the fact that the unanticipated death of the grantor about ten months after the making of the deed cut short his business activities and prevented his personal attention to the continuance of his business to November 1, 1916, and to the closing out of same at that time and' the disposition of his assets, which may have brought about a very different result from that shown by the inventory of his assets after his death.
*597However, if the judge of the court below had rested his decision on the ground that he was of opinion from the evidence that an actual intent on the part of the grantor to defraud existing creditors existed at the time the deed in question was made, there would be great force in the position taken at the conclusion of the majority opinion, since there was in the case before us the circumstance of covin that the deed purported on its face to have been made for a valuable consideration, which might be said to be a false statement, and the grantor thereafter increased instead of diminishing his indebtedness. The courts have.found it ■ impossible to establish any standard by which fraud is to be measured. Each case must be considered upon its own facts, and the judgment of a chancellor upon the facts of a case is entitled to great weight; the appellate court will not reverse the decision of the court below unless satisfied that it is wrong; and “the burden is upon the party complaining to show error and to satisfy the appellate court of such error ”—as stated in the majority opinion.
But in the case before us, we cannot rest the case upon the presumptions in favor of the correctness of the decision of the chancellor in the court below upon the issue as to whether an actual fraudulent intent as against existing creditors existed on the part of the grantor at the time of the making of the deed in question, since it affirmatively appears from the opinion of the court below in the record that he did not rest his decision on that ground. Such opinion is as follows:
“In this cause I am of opinion that the grantor in the con- . veyance did not retain in his hands ample funds or property to pay his obligations (i. e., it did not clearly so appear).
“I am further of opinion that where the grantor in the conveyance was indebted at the time he made the conveyance, the transaction is void as to existing creditors and prima facie void as to subsequent creditors. This I under*598stand to be the Virginia doctrine. I will therefore enter a decree for the complainants.”
Now, as we have seen above, the facts in the case before us do not sustain the first position taken in such opinion; and, as correctly pointed out in the majority opinion, the second and only remaining position taken in such opinion cannot be sustained. On neither ground, therefore, upon which the judge of the court below decided the cause can the decree complained of be upheld by us.
Further: While courts have found it impossible to establish any standard by which fraud may be always measured, they have firmly fixed one rule on the subject and that is that fraud must not only be distinctly alleged but as distinctly proved. Now if fraud in the making of a conveyance, such as that involved in the cause before us, can be proved by the plaintiffs, who are subsequent creditors of the grantor, by merely showing the existence of two bare facts, namely, (1) that the deed stated a valuable consideration, instead of showing on its face that it was voluntary, and (2) that the grantor after the making of the deed got in debt, then fraud may be established upon very scant proof indeed. The second fact mentioned is just as consistent with good faith as with fraud. This leaves only the first fact alluded to as the sole circumstance upon which the inference of fraud could be based. The statute, section 2459 of the Code, negatives such inference being drawn from that single circumstance.
The court below, therefore, was manifestly right in not resting its decision on the ground that the evidence in the cause proved an actual fraudulent intent on the part of the donor. For the same reason I do not think we can properly rest the case on that ground and thus sustain the decision of the court below. The majority opinion rests an affirmance of the cause upon another ground, as involving the controlling question in the case, namely (in substance), *599that the burden of proof is upon the wife, who was grantee in the deed in question, to show “that there was no fraud and a number of Virginia decisions are cited in such opinion to sustain the position taken that such burden rests upon the wife claiming under a deed from her husband, as in the case before us. But with the utmost deference, I must say that an examination of those cases, as I construe them, discloses that the extent of their holding is that the presumption against the wife in respect to such a deed goes no further than to the question of the consideration for it. That is to say, a conveyance from a husband to a wife is presumed to be voluntary as to existing creditors. Those authorities seem to go no further than that holding. All of those authorities involve only the question of consideration. It appears from the express statements in most of such decisions themselves that the presumption against the wife extends only to the question of the existence of a valuable consideration for the conveyance. As stated in Witz, Biedler & Co. v. Osburn (one of the cases cited in the majority opinion), 83 Va. 227, at page 230, 2 S. E. 33, 34: “The deed * * * is therefore a, post nuptial settlement on the wife, voluntary, and therefore fraudulent and void as to existing debts; but not as to subsequent debts, unless actually fraudulent. If tainted with actual fraud, it is void as to subsequent debts.” (Citing a number of Virginia cases—italics supplied.) See also Irvine v. Greever, 73 Va. (32 Gratt.) 411, 418, for the same holding. And, as above indicated, in all of the Virginia cases cited in the majority opinion in which the presumption against the wife was applied, the attack upon the conveyance in question was made by existing creditors of the grantor and the presumption was applied only to the extent of the consideration.
'But, if it were conceded that when a case may be presented to this court where a conveyance from a husband to *600wife is assailed by. creditors existing at the time of the conveyance, on the ground that an actual fraudulent intent on the part of the grantor existed at the time the conveyance was made, this court may hold that the burden of proof would be on the wife, not only to show a valuable consideration moving from her, but also to negative the existence of such fraudulent intent which might otherwise be inferred from any and all other particulars besides that of the presence or absence of a valuable consideration (and I can see that there may be a good and sufficient reason for so holding) ; still, it is well settled, as above, noted, that as to subsequent creditors no presumption of fraud exists against the wife, and no burden to negative it in any particular rests upon her. (Witz, Biedler & Co. v. Osburn, supra.) As said in the opinion of this court delivered by Judge Whittle in Richardson v. Pierce, 105 Va. 628, 631, 54 S. E. 480, 481: “On the other hand, where the husband is not indebted at the time of the transaction, no such presumption arises; and the burden of proof is upon the subsequent creditor to show that a prospective fraud was contemplated and directed against him; and this principle applied also to voluntary settlements by the husband upon the wife. Hutchison v. Kelly, 1 Rob. 131, 39 Am. Dec. 250; Bank v. Patton, 1 Rob. 528; Johnston v. Gill, 68 Va., (27 Gratt.) 587; Witz, Biedler & Co. v. Osburn, supra; DeFarges v. Ryland & Brooks, 87 Va. 404, 12 S. E. 805, 24 Am. St. Rep. 659; Building Association v. Reed, 96 Va. 345, 31 S. E. 514.”
Therefore, the fact that the deed in the case before us was made to a married woman does not distinguish the case from other cases governed by section 2459 of the Code of Virginia. • And the rule is, as admirably stated by Prof. Lile and quoted in the opinion of.the majority of the court, <«* * * as to subsequent creditors actual fraud must ’be proved. The voluntary character of the transaction may *601be one element in the proof, but not sufficient proof, because the statute says it shall not be.” That is to say,.the burden of proof is on subsequent creditors to prove the existence of an actual fraudulent intent in the grantor at the time he made the deed in question..
It is true, as appears from the quotation above from the case of Witz, Biedler & Co. v. Osburn, supra (and from many other Virginia cases), if there were existing debts at the time the deed in question was made (as was true of the case before us), but such debts are not asserted in the suit seeking to set aside the deed, yet if an actual fraudulent intent on the part of the grantor is shown to have existed as against such existing debts at the time the deed was made, the deed Will be held to have been tainted with actual fraud and to be actually fraudulent as to subsequent creditors who may assail it. But as to subsequent creditors, the burden is on them to prove the existence of actual fraudulent intent as to debts which may have existed at the time the deed in question was made.
Now, on the question whether the appellees, seeking to set aside the deed to appellant, are subsequent or existing creditors: If the payments made on those debts were applied by such creditors to the oldest debts on those accounts, they are subsequent creditors and not creditors whose debts existed at the time the deed was made which they seek to have set aside as voluntary and fraudulent as to them.
By entering such payments in accounts current, rendered by them, with items of debit and items of credit dated, the creditors in the case before us themselves applied the payments made on account to the oldest items of debt and this left no room for contention that as matter of fact the debts they asserted by the bringing of the suit before us were debts in fact existing at the time the deed in question was made. Clayton’s Case, 1 Merivale, 609-611. 3 Eng. Ruling Cas. 329; Deeley v. Lloyd’s Bank, Ltd., App. Cas. (1912), *602page 756; Sherry’s Case, 25 Cy. Div. (Eng.) 672, 692; Peale v. Grossman, 70 W. Va. 1, 73 S. E. 46, Ann. Cas. 1913 C, 1373.
It is true that in a number of jurisdictions where it seems there is no such statute as that in Virginia above quoted, it is held that: “In case of running accounts, the earliest indebtedness being paid by the proceeds of the later, the continuing indebtedness stands upon the same footing as an indebtedness existing at the time of the conveyance * * (20 Cyc. 422.) To the same effect Spuck v. Logan, 97 Md. 152, 54 Atl. 989, 99 Am. St. Rep. 427. Such a holding in Virginia would bd in direct conflict with said statute (section 2459 of Code of Virginia), which, as said in Peale v. Grossman, supra, with respect to the West Virginia statute, the same as the Virginia statute.” * * * The statute defines who is a prior creditor and who is not. By the terms of the statute a creditor’s relation to a voluntary conveyance is fixed only by the time of the contracting of the debt. It does not permit making a creditor what he has not made himself in this regard.” It seems clear, therefore, that such authorities relied on by appellees should have no weight with us upon the question under consideration.
I am, therefore, constrained to the opinion that the decree complained of should be set aside and annulled, and a decree of this court entered sustaining the deed in question.