It is not necessary that the language of the certificate be identical with that of the form given by the statute. It is only necessary that it conforms to it in effect. The certificate under consideration conforms to the form in the statltte in all the necessary elements, and this is all that is required. "It is a substantial compliance in everything material." See Tod v. Baylor; 4 Leigh, 513; Siter v. McOlanachan, 2 Grat. 294. None of the exceptions to t4e commissioner's report being sustained, the report will be confirmed.
NOTE. In conformity with this opinion, a decree was rendered May 27,1886, in favor of David E...Tames for $4,981.70, the amount ascertained to be due him by Co=issioner Honaker's report, with interest on $2,225, part thereof, from October 26, 1885; and awarding costs to defendant; and further directing a sale of the lands in the bill and proceedings mentioned, unless McCormack shouldl within 60 days thereafter, satisfy the decree. From this decree McCormackappealea to the circuit court, BOND,.T. This 8l>l?eal being heard, the decree. of the district court was affirmed,. an.d a decree accordingly was tendered .Tuly 15,1887; from which last decree there has been no appeal.
BUFORD "'. COOK
August 31, 1888.)
FRAUDULENT CONVEYANCES-WHAT CONSTITUTE-EvIDENCE-SUFFICIENCY.
In· a proceeding by creditors' bill to reach certain land which had been conveyed to the debtor's mother-in-law, the latter claimed that she was to be allowed a certain sum per year for services in the. debtor's family, and that she owned and had paid for the land in suit, but knew nothing about how or when the pnrchase had been made, Or a building thereon had been erected. The proceeds of the only property she had, had been invested in other lands, and her husband, during the last years of his life, having been disabled, had contributed nothing to their support. The debtor had in fact furnished and paid the money. Held, that complainant was entitled to a decree subjecting such property to the satisfaction of his judg-mcnts. 1
In a proceeding by creditors' bill to set aside certain mortgages liS frauduIlmt, it appeared that the mortgagee, who was the debtor's banker, had begun business with a capital of $10,000, and in six years· had taken mortgages for advances to the debtor to the amount of $23,000. The debtor had previ· ously been in embarrassed circumstances, and was carrying on a larg-e agricultural implement business, with warehouses and agents in different places, in an extravagant and careless manner. As to a portion of the indebtedness, its genuineness. was testified to by the and debtor; and the former offered to produce the account, but it was not called for As to the remainder, a full itemized account was presented. and no item was shown to be wrong. Held tbat, although some of the _debtor's property might not have been accounted for by the mortgagee, and certain chattel mortgages taken as additional security might not be sustainable, the transactions could not be , .said to be fraudulent. 1
In Equity. .. Creditors' bill by James M. Buford, assignee, against John B. Cook, ViolaE. Cook, Susan Smith, and W.'L. Culbertson, toaet aside fraudulent conveyances.
. as to what is su1llcient evidence of fraudulent intent to cause a conveyance by a 'debtor to be set aside,Neal v. Foster, p08t, 29, and note.
Oole, Me Vey (J[ark, for complainant. Geo. W. Payne, for defendants.
BREWER, J. The facts in this case are these: Plaintiff holds two judgments against the defendant John B. Oook, together to about $9,000, upon which judgments executions have been issued and returned unsatisfied, and this bill was filed as a.creditors' bill to reach certain real estate, part of it standing in the name of Viola E. Oook, the wife of John D. Cook, and a single lot in the name of Susan Smith, the mother of Mrs. Oook. One of these judgments was rendered against Doth John D. and Viola E. Oook. So far, then, as Mrs. Oook's interest is concerned, it can be taken under' that judgment as well as her husband's. All the real estate, standing in the name of Mrs. Oook is subject to the lien of several mortgages given to the defendm1t W. L. Oulbertson, and thE! bill attacks these mortgages as fraudulent and void. The first question, and that easy of solution, is whether the real estate standing in the name of Mrs. Smith is hers, or equitably the property of John B. Oook. Mrs. Smith and her second husband lived with Mr. and Mrs. Oook from 1873 to,1884, at which time Mr. Smith died. At the time she commenced living with Mr. Oook she had no property but a house and lot in Ohio, left her by her first husband, and the proceeds of that, when sold, were invested in lot 7 of block 3, in Oarroll, I9wB. Afterwards lot 1 in block 9 was purchased in her name, and a building erected on it, and this is the property about which the contention arises. During the last years, of his life Mr. Smith was practically disabled from work, and contributed substantially nothing to the support of himself and wife. The money for the purchase of the lot and the erection of the building was, in fact, furnished and paid by Mr. Oook; and while Mrs. Smith claims that she was to be allowed $300 a year for her services; that8he owned this property and paid for it, yet it very clearly appears that this was all a,mere pretense, and that property was really all't4e tiJ;ne Mr. Oook's. She' personally had ]lothlng to do with, the transaction oithe purchase or the building, and could not tell how or when they were had. The complainant is entitled toa decree subjectirigher interest in this property to the satisfaction of the judgments. This,however, is a minor matter. " The principal question 'is as to the validity of the Oulbertson mortOook executed five mortgages gages. 'Between 1873 and January, to Oulbertson, aggregating $11,500. In January, 1882, and January, 1883) he executed three more mortgages, amounting to $9,800, and seoured these by different tracts of real estate. In January, 1882, he exeouted a chattel mortgage for $12,500, and in January, 1883, another for These mortgages we.re merely gIven as addltlOnal securlty. As the nght to ret,am possesSIOn of the mbrtgaged 'property and to sell and dispose of them was retained by the mortgagor under these last two mortgages, and as the property therein was, in fact, sold and d,isppsedof by the mortgagor, they drop out of consideration, except so far ,as they th,row light upon the question of
BUFORD V. COOK.
good faith. The first question is whether these real-estate mortgages . were to secure bona fide indebtedness. In reference to those executed before January, 1882, both Culbertson and Cook testify as to the gen1,1ineness of the debts. Mr. Culbertson was a banker, with whom Mr. Cook did business; and,'while it does. not appear from their testimony that either of these five mortgages represented a distinct loan made at the time, it does appear from such testimony that the full amount thereof was from time to time advanced from the banker to his customer. these The account of the dealings between Cook and Culbertson years is not presented, though Mr. Culbertson offered to produce such account, if desired; but it was not called for. With. reference to the transactions bet,ween Mr. Culbertson's bank and Mr. Cook from January 1, 1882, onward, an itemized acoount is presented, and testified. to by Mr. Culbertson as correct. The correctness of this account is notchallenged by any direct testimony, though, Hnot correct, means Qfattack were plainly qisclosed by the account itself. It embraces a large number of items, both. of debt and credit, with such distinctness as would enable the complainant easily to prove their falsity, if they were false. The creditors of Cook in whose favor drafts were. given'qy Culeasily llave been interrogated, and theirut4 orfalsity of those items shown In the absence of such testimony, and wjth tllepositive testimony of Culbertson a/3 to the ,correctne.ss of the account, its truth must be considered as proved. As the prior account was not called for when proffered. I think the same t9 its geimimmess follows. I know there are some things wllich: .make .against thiscpnclusion, and the leamed counsel for complainanUl8:$ presented these various matters. with.agreat deal of ingenuity and force. .' Obviously they throw a goqd deal ofsuspicion a:round the of the banker and his customer. I think the careless and extrav/lgant way in which Cook was carrying onbis business. sufficiently explains most of the suspicious circumstances. He was carrying oq the agricultural i Ul plement b\lsiness, partly. as an independent trader and partly doing a commission He had warellouses and agencies in six or eight many agents, and going tQ large in the matter of warehouses, freights, employes, and other expenses. He put his real eatatein the name of his wife by reasOn of..solIlc priorpec:uniary embarrassments of his own. On ",everal of these lots that stand.in his he put warehouses, and seems to have been frequen,tly trading machines for real estate or mQrtgages. His .banking business was done principally witp it is not strange .that in giving his testimony as to the various transactions, withoht his books or accounts before him, some inaccuracies have crept in; but of the general fact that he was doing a large business, and having his banking transactions with Culbertson, there can be no doubt. Something more, then, than mere suspicion should appear to invalidate the securities given for the balances shown by the banker's books. It seems strange that a banker starting in 1876 with a limited capital-$10,OOO, as Mr. Culbertson testifies-should have made such large advances to one customer-some
$23,OOO-ill six years; and yet, when we consider the business done by Mr. Cook at so many different places, and the expenses attending the work at each place, it is obvious that he must have somewhere obtained funds therefor. I do not think it strange that at the commencement of the years 1882 and 1883, in view of the expected advances, Mr. Culbertson should ask chattel mortgage security as further collateral. I think he may well have anticipated the difficulties and embarrassments which subsequently befell Mr. Cook; and insisting on all the security he could obtain is not to be charged against him as evidence of fraud. It may be that these· chattel mortgages, under the rules laid down by the supreIlle court of Iowa, could not have been sustained if challenged; but that does not show that Mr. Culbertson was trying to defraud, but simply that he mistook as to the validity of the extra security which he was obtaining. It is also true that just before the September term, 1883, of the courts in which suits were pending against Cook brought by some of the creditors, Mr. Culbertson received sundry cOlweyances as security. It does not seem to me, from the testimony, that all the security which Mr. Culbertson has can be donsidered excessive for the indebtedness which he shows; and the mere fact that a banker presses for and obtains security, unless grossly excessive, is not to be· charged against him as fraudulent. I do not believe that anything will be gained by noticing in detail the varioustransactiolls commented upon by counsel in his brief. It fully be that Mr. Culbertson has not given full credit for the proceeds of all the property received from Mr. Cook, and converted by him since these troubles commenced; and perhaps there should be a credit of$2,OOO more, as claimelJ. But, after all, that which impresses me the most is the fact that an itemized account of the transactions after Janu.ary, 1882, was presented, and not a single item is shown to be wrong. The burden of proof, of course, is on the complainant. Before wrong and fraud can be adjudged against the defendants, there must be some.thing more than a mere suspicion,-there must be proof; and I have read ;and reread the testimony without being able to come to any other conclusion than that the transactions and the indebtedness between Cook and Culbertson ,vere substantially as stated, and that, no excessive or unreasqnable security was exacted or received by Culbertson. Under these circumstances, I do not think the complainant is entitled to any relief as against these mortgages. Defendant Culbertson is therefore entitled to a decree in his favor dismissing the bill. The complainant can take a decree against Mrs. SmitJl's interest in the lot hereinbefore referred to.
ASPEN MINIl'iG & SMELTING
'V. ASPEN MINING
(Oircuit Oourt, D. Oolorado.
August 18, 1888.)
William J. Wood. the locator of the mine in question, was born in Canada, where he lived until 1870, when he moved to Kansas, leaving his wife and five or six children in Canada. It appeared that an entry of public lands had been made in Kansas, by a William Wood. who made oath at that time that he was a citizen. the head of a family consisting of a wife and seven children, and that he and his family had resided on the land from September, 1870, to April. 1871. A witness testified that .he saw naturalization papers issued in Kansas, in such locator's possession, but no record of snch papers conld be found in that state. Held that, the locator's title to the mine being of recent origin, the evidence of his citizenship was insufficient to support the same.
ANt> MINING-LoCATION AND ACQUISITION-CITIZENSHIP-EvIDENCE.
In Equity. Suit to caucel a conveyance. Suit by James A. Wood and others, heirs at law of William J. Wood, against the Aspen Mining &. Smelting Company, Jerome B. Wheeler, .and others, defendants, to set aside a conveyance made by complaina,ntsof their interest in a mine located by said William J. Wood. T. A. Green, for complainants. G. J .. Boal, for Wheeler. T. J.Ed8all, for Aspen Mining & Smelting Company. HALLETT, J. In the month of April, 1880, WilliamJ. Wood,with two other persons,located the Emma mine, in Pitkin county ,and wards died intestate. This bill is filed by complainants, as the heirs at law of Wood, to set aside certain conveyances made by them of their terests in said mine inherited from William J. Wood, and to establish their title thereto. It is alleged in the bill that William J. Wood was at the time of locating the mine a citizen of the United States, and thus qualified to acquire title to .public mineral lands under section 2319 of the Revised Statutes. This allegation is denied in the answers, and has become the subject of proof. It is conceded that Wood was born in Canada; and lived there until the year 1870, when he came to the state of Kansas, leaving a wife and five or six children residing in Canada. In proof of Wood's citizenship a record of an entry of land made by one William'Vood in Greenwood county, Kan., is offered. In that entry William Wood made oath that he was a citizen of the United States, which oath it is claimed establishes the fact. The proof offered in support of the entry shows that William Wood was the head of a family consisting of a wife and seven children, and that he had resided with his family on the land from September 20,1870, to the date of entry, April 8, 1871. Inasmuch as William J. Wood had then only six children. and his wife and family were in Canada, it would seem that he was not the same person who entered the land in Kansas. If he 4id make entry, he gave false testimony as to the number and residence of his family, which is not to be presumed. He also gave false testimony as .his. citizenship. He had th.en been ill t4e COUlltry pnly one year, and.