This was a creditor’s bill filed by appellee against appellant, charging the recovery of a judgment by appellee against Frank Freischenmeyer November 13, 1885, in the County Court of St. Clair county for the sum of §838.85, the issuing execution on that judgment November 20, 1885, return February 1, 1885, “no property found,” and charging defendants in execution as being insolvent. That prior to the rendition of the judgment, but after the indebtedness upon which the judgment was rendered was contracted, on the 23d of October, 1885, defendant in execution made a mortgage to Henry Behrmann, one of the appellants, to secure a note for the sum of 81,000, bearing interest at the rate of eight per cent, per annum, due five years from date, and to secure this note executed a mortgage on certain property in the bill described ; that the premises mortgaged was the homestead of the judgment debtor, and his wife did not join in the execution of the mortgage; avers the mortgage was fraudulent; that the note was without consideration and was made to defraud creditors, and asks to have tlie mortgage declared fraudulent and void and that the property mortgaged be declared subject to execution. Oath to answer is waived.
The answer to the hill denies all allegations except the making of the mortgage and that premises are occupied as a homestead, and alleges that the mortgage was given by the mortgagor to secure the mortgagee for money before that time advanced, and to indemnify him for assuming various indebtedness of the mortgagor on which the mortgagee was security. Avers the mortgage was given in good faith for a good and valuable consideration. Explications filed, and on hearing the defendants were called as witnesses by complainant in bill. The testimony of mortgagor is that the mortgagee had paid one note for 8154, and three notes of 8100 each, on which he was surety for the mortgagor, and on another note for 8310 on which he was surety, lie had taken up some. The names of payees of notes are given. Further states that mortgagee had advanced to him cash, a loan, in 1883, for 877, and in 1884 for 8^5i and then states that he can not give all the items.
The mortgagee, on being called by complainant, testified to same facts, but one of the notes, stated by the mortgagor as $100, he states to be $106, and names an additional note of $108, and the $310 note is stated to be $315, and states cash advanced the same amounts as given by the mortgagor, with an additional §50. Both witnesses state the mortgage was made in good faith to secure a valid indebtedness. The several amounts stated make up the amount of the note secured by mortgage. The value of the property mortgaged is stated to be §4,000 to §5,000.
This was substantially all the evidence in the case. The court entered a decree as prayed for in the bill.
The evidence does • not show that the note was without a consideration; on the contrary, it appears from the evidence that the mortgagor was actually indebted to the mortgagee in the amount of the note secured by mortgage in good faith. The mortgage to secure the same must then stand and be held valid and binding as between the parties, unless shown to be fraudulent in law or fact. It can not be held fraudulent because a debtor consents to secure a creditor for a debt, owing in good faith; nor is fraud to be presumed, but the burden oí proving it rests on the party alleging it.
The absence of evidence showing fraud in fact in this case then leaves, as the only question to be determined, whether there is fraud in law. The appellee insists that the fact of this note having been given on five years’ time, without the interest provided for being paid annually, and the fact that the wife of mortgagor did not sign the mortgage and release homestead, are such badges of fraud that this decree should be affirmed. We can not so hold. We do not in this case find any sufficient facts shown by this evidence on which the decree can be sustained.
The decree is reversed and cause remanded.
Reversed and remanded.