delivered the following dissenting opinion:
If the complainant can successfully assail the deed, which is the ground of this suit, he must do so for the reason that it was made with the intent to defraud subsequent creditors.
The deed was executed and recorded some years before the debt of the complaining creditor arose, and he *611therefore does not stand in the attitude of an existing creditor.
Some contention has been made in the argument that the complainant should be treated as. an existing •creditor, because he continued to deal with the grantor, McCullough, after the debt which was due him at the time of the execution of the deed, was fully paid.
But I can see no distinction between the case of a creditor whose debt has been paid, and who afterwards again deals with the debtor, and any other creditor.' In attacking deeds for fraud I think our decisions have always maintained a clear distinction between existing and subsequent creditors. As the claim of Diggs, the complaining creditor, which was in existence at the date of the deed, has long since been fully paid and satisfied, if he has any claim to relief it must be as a subsequent creditor only.
It is well settled in this State that a voluntary conveyance may be set aside by a subsequent creditor, provided it was executed with the design and intention of defrauding those who should thereafter become his creditors. Matthai, Ingram & Co. vs. Heather, 57 Md., 484. But while the law is so stated very distinctly and emphatically, yet 1 find no case in this State where such a deed has been declared void against subsequent creditors, and very little authority defining the general principles that should guide' us in endeavoring to search out such frauds. There have been, however, some decisions which I think worthy of special notice.
The case of Williams vs. Banks, 11 Md., 250, was the case of an attempt to se't aside a voluntary conveyance, and a majority of the Court in that case use very strong-language in reference to the effect of our registry laws upon deeds of that character, and go so far as to say, “we cannot comprehend how a person who, at the time of becoming a creditor, is aware of the existence of a *612deed, can, in any just sense be considered as ‘disturbed,, hindered, delayed or defrauded’ by it. It seems to us to he a contradiction in terms to say, that a person is defrauded by an instrument when he deals with a perfect knowledge of its existence and of its effect;” and the opinion then goes on to state that the registry laws do-give such notice.
' Standing alone these expressions certainly seem to imply, that as a subsequent creditor 'has notice, by its registration, -of the existence of a deed he could not-be defrauded by it. But in another part of the same-opinion the same Judges say that they do not wish to he understood, “as denying the right of subsequent creditors to invalidate a fraudulent deed when made with the intention and design to defraud those-who should thereafter become creditors.”
In Kane vs. Roberts, et al., 40 Md., 590, an attempt-was made by a subsequent creditor to upset a deed as-fraudulent and void against him. It was conclusively proved by the grantor himself that the deed was made for the purpose of defrauding certain existing creditors, and the subsequent creditor insisted that a deed that was 'fraudulent in fact was void against subsequent as well as existing crediors. In answer to this contention the Court said:
“While some of the authorities referred to sustain this proposition, we cannot hold them to be the law in this State in view of the decisions of this Court in the cases of Williams vs. Banks, 11 Md., 250; Cooke vs. Kell, 13 Md., 469; Moore, et al. vs. Blondheim, et al., 19 Md., 175. These cases hold that a voluntary deed, which is fraudulent in law, is void as against preexisting creditors, and also that a voluntary deed, which is made with the design to defraud subsequent, creditors, may be impeached by those so defrauded. But they also hold that, where a voluntary deed is-*613made without design to defraud subsequent creditors, and is recorded, it is valid against all subsequent creditors.”
It seems to me that this is a succinct statement of the law on that subject as it exists in this State today. A deed may be fraudulent in fact, that is to say, made with the design to hinder, delay and defraud existing creditors, yet unless it was made with the intention and design to defraud subsequent creditors,, these latter have no right to impeach it. They deal with the party with knowledge, either actual or constructive, of the existence of the deed.
It is very apparent from these cases, that in order to entitle a subsequent creditor to relief against a duly recorded deed, he must show something more than that the deed was fraudulent in fact as against existing creditors. He must show the intent and design to defraud those who might thereafter become his creditors. This fraudulent design must be shown by some declaration or acts of the party seeking to defraud. But as fraudulent conveyancers do not generally disclose their designs, we generally have to rely upon a scrutiny of their acts. Unless therefore the grantor has done something or said something from which we can reasonably infer that at the time he executed the deed, it was with the intent to defraud the subsequent creditorsj the deed as to them, must stand.
It is the theory of the complainant, that the execution of the deed in controversy was the first step taken by McCullough, the insolvent, gradually to strip himself of all his property, and get the titles in members of his family, and so defraud his creditors. If we adopt this theory, its logical sequence must and will be, that all the conveyances which he subsequently made to members of his family, or connections, were fraudulent and void. There are several such referred *614to in the record, hut the parties claiming title under them are not parties to this cause, and we should thus determine upon the rights of parties without giving them the right to he heard. These subsequent conveyances may or may not he valid. But the validity of the deed of 1880 alone is for decision in this case; and although we have the right to look, and do look, at the subsequent acts of McCullough in order to-throw light on his motives for th-e deed of 1880, yet-the validity of any other deed must stand unaffected by this decision.
McCullough, the defendant, was a dealer in coal, and carried on that business in Baltimore for nearly thirty years before his failure. He married a dressmaker who-carried on a profitable business for eight or ten years-after they married, and all her earnings over necessary expenses she handed over to her husband. These earnings however were not given to him in such a manner as to establish the relation of debtor and creditor between them, nor were they taken for the purpose of investment-for her, but they became legally his. In 1881 he procured the deed to be made from Slicer to her. He, McCullough, and his wife both depose that this was done at-her request. But throwing their evidence on this point out of the question, the well established fact is that McCullough had received, a considerable amount of' money which she had .earned, and it is equally well established that in 1881, McCullough was entirely solvent. Under these circumstances a settlement on his wife was commendable and proper. The solvency at that time of the defendant is shown by the evidence of his former bookkeeper as well as his own. It also is shown by the fact that there is no creditor of defendant here complaining except Diggs, and his unpaid debt did not arise until about 1885, four years after, and his, Diggs’ claims were 'all paid up to *615about that time, although the defendant was constantly dealing with him; nor was the settlement on his wife at all out of proportion to the means of the defendant. Diggs, the complaining creditor, was examined, and does not pretend to say that the defendant ever made any false statement to him, or led him into any error as to his condition. Indeed all lie does say against the defendant is, that he, Diggs, sometimes lent him money at short dates, to pay his notes to him, Diggs. The solvency of defendant is also shown to have existed up to 1883, if not longer.
But in 1886 the defendant failed, and went into insolvency. His difficulties he says began in 1884, and it is certainly probable that they began some time before his failure. lie attributes his failure to stock speculations, but at any rate he failed. When he found himself in failing circumstances some, of his transactions may have been questionable. But even supposing that he may then have been guilty of fraud, it does not follow that every previous act of his was tainted with it.
If McCullough was solvent in 1880 and 1881, and if every creditor of his at those periods has been paid in full, and if his solvency continued until 1883, and if the settlement on his wife was not out of proportion to his means, and his wife had a meritorious, if not a legal claim upon him for such a settlement, and all these facts are proved, then something more must be shown besides the mere fact of a subsequent failure before such settlement can he set aside as fraudulent. But I can tind nothing in this record to connect the deed of 1881 with his subsequent failure. There is no evidence whatever that I can see, going to show that the deed of 1881 was made with the “design and intent” to defraud subsequent creditors. There is not a particle of proof that the defendant ever made a false represen*616tat.ion to one of his creditors, or held himself out to the world as better off than he really was. Under such circumstances I cannot say, that the design and intent of the deed of ’81 was to defraud, hinder and delay his creditors. It is shewn by the executed deed of 1864, that the purpose existed to give this farm to his wife for sixteen years before it was done. There is no doubt that the defendant and wife executed and delivered to his brother George a deed for the property in dispute in 1864. It is equally certain that George deeded the property back to Mrs. McCullough, but never delivered the deed to her, or had it recorded. If the “design and intent,” to defraud subsequent creditors by such deed existed, the defendant was singuilarly slow in putting his design into exemxtion.
It is suggested that the deed to Mrs. McCullough cannot be supported because the answers of the defendants claim that it was her money that paid for the property, while the proof shows that it was his.
Admitting to the fullest extent the law as laid down in Betts vs. Union Bank of Maryland, 1 Har. & G., 175, and Cole vs. Albers & Runge, 1 Gill, 412, that where a deed is impeached for fraud it will not be allowed to set up a different consideration from the one expressed in the deed in order to support it, that principle has no application to the case before us.
The consideration expressed in the deed from Slicer to Mrs. McCullough is “for and in consideration of the sum of three hundred dollars lawful money, and for other valuable considerations moving the same.” This deed does express a money consideration and is a deed of bargain and sale, and the proof is that it was made fpr a valuable consideration. It is true that the consideration moved from the husband, but the deed in fact does not allege that the consideration moved from the wife. But the consideration was a valuable one. *617In Cole vs. Albers, tlie deed, expressed on its face a money consideration, and upon proof that in fact no money was paid, the consideration of marriage was attempted to he set up to support the deed, and this, the Court said, could not be done, but they allowed in that case consideration of the same hind differing only in amount from that expressed in the deed, to he shown.
In this case we must deal with the deed itself and the proof, and if the defendants in their answers made a mistake in point of lato in supposing that the money was hers, when it was legally his, that mistake cannot prevent the deed from operating as a voluntary conveyance, if otherwise good.
Another point made by the appellant is, that the consideration for this deed moving from the husband, the consequence is a resulting trust for the benefit of the husband, and that his creditors have now the right to take it. In this the appellant is in error.
Where the purchaser takes the deed in the name of his wife, the presumption is that a gift or an advancement was intended, and there is certainly nothing in this case tending to rebut such presumption. 1 Perry on Trusts, 142.
Recurring, however, to the main question in this case, which is one of fact, there are suspicious circumstances attending the conduct of McCullough subsequent to the deeds now in controversy. If these deeds are to be declared void it must be on account of his subsequent acts, for no one would claim that these deeds were void, viewing them as standing alone and disconnected with any subsequent conveyances; and before we can declare them so we must be convinced that these subsequent deeds were fraudulent, and it seems to me that our decision would in effect, say so, while the grantees are .strangers to the case. The whole of the complainant’s case rests upon the testimony of McCullough himself. *618If the whole of his testimony were stricken from the record, the complainant would not have a shadow of a case. If we were totally to discredit the witness, the effect would be the same as if all his evidence was expunged. But the complainants have the right to ask us to test any portion of his evidence by probabilities, or facts, as we may be satisfied such facts exist, and this we are willing to do. But there is nothing improbable in the fact as deposed to by himself and, in part, corroborated by his former book-keeper, that he was solvent in 1881, or that at his wife’s request he then made a settlement on her—a settlement that she had the right to ask, considering the amount of money she had given him, and which it was but just, if he was solvent, for him to make. It is consistent with every day’s experience in the mercantile world that he, who is solvent one year, may be insolvent the next; and experience also teaches us the lesson, that as men become beset with difficulties they too often resort to expedients and acts that in their better days they would repudiate. I do not, therefore, think that McOullough’s sale to Meyers, his brother-in-law, or his conveyance to his son, Gfeorge, whatever we might -think of those transactions, would be sufficient to invalidate a deed made four or five years before.
There is another consideration which I think is entitled to much weight in the decision of this case, and that is the question of time. McCullough parted with the title to this property in 1880, and the bill to set aside the deed was not filed until December, 1886, six years after the deed was duly recorded. Now a party is always allowed a reasonable time after the discovery of a fraud, or when with ordinary diligence he might have discovered it, to institute proceedings to correct it. Now Diggs, the complainant, had constructive knowledge of this deed in 1880, and yet continued to *619deal with the defendant up to 1885, and his hills were paid up to that year. Diggs himself, for these four or five years, never supposed the deed was made with a design to defraud subsequent creditors, or he would not have continued to deal with McCullough. If McCullough had the design to defraud Diggs in the future when he made the deed, he gave him the full period, five years, before he began his operations on him, and certainly the most ampié time and opportunity to ferret out, a fraud, if fraud there was.
But Diggs, in his bill of complaint, does not charge that the deeds were made to defraud subsequent creditors, but charges that the defendant was indebted at the time of making them, and relies upon the theory of continuous indebtedness to support his claim, and there is no proof of any other debt.
But we have before said that the theory of continuous indebtedness, as advanced by the complainant, is untenable.
Reasonable diligence is one of the conditions of obtaining relief at the hands of a Court of equity Of the soundness of this rule there can be no doubt. If parties who have good reason to assail the transfers of property, delay unreasonably in so doing, there is always danger that the rights of innocent third parties may he affected. Therefore equity demands that reasonable diligence that the nature of the case before it demands. I do not think that such reasonable diligence is shown when one merchant, dealing with another, and both residents of the same city, and both dealing in the same article, stands by for five years after a deed is put on record, before he complains of it, and who only complained of it when he did, because his customer had become insolvent.
I think the decree should he .affirmed.
(Filed 9th January, 1889.)