majority">Martin Ch. J.:

The rights of the respective parties in this case depend upon the fact, of the fraud or good faith of Weeks, through Whom all claim, in making the assignment to Draper. If the assignment was made in good faith the bill of the complainant Baldwin must be sustained: if otherwise, it must be' dismissed, and the title of the defendants sustained and established. Fraud is a question of fact, to be made out like any other fact. The fraudulent intent of the assignor must "be proved by such evidence as is required to establish any other fact. This may be by the acts and declarations of the party, his circumstances and situation, the terms or provisions of the instrument, or by any and all means of evidence which convince the mind of the existence of the thing sought.

We have examined this case with much care, and are satisfied that the assignment of Weeks was made in good faith and with an honest intent. The evidences relied upon to establish its fraudulent character, are: First, that Weeks, when he made the assignment, thought himself to be solvent, and only wanted time to convert his assets into money that he might pay his creditors. That he was not solvent is very evident, and it is difficult to believe that he could have thought he was. It is true that he said his property, if sold at the estimated value he placed upon it, would pay his debts; but this was a remark very, natural to be made in those times of panic and ruin, by any one; and is proof of his opinion of what his condi*392tion should be, rather than of what it was. If Weeks actually believed himself to be solvent, and being pressed by creditors, had avowed his intention to assign for the purpose of getting time, these would be strong evidences of fraud, and, in most cases, perhaps, require the fact of fraud to be found by the Court or jury; but either or all of these facts may be explained, and the explanation may repel the inference which should otherwise be drawn. We think that in the present case we cannot draw any inference of fraud from this evidence.

/Second, That Draper, the assignee, was a relative, and resident of Detroit, so as to make it necessary to appoint Weeks himself an agent to keep and dispose of the property, and manage the business. No shadow is cast upon the integrity or capacity of Mr. Draper, while the character of the assignor’s business, and his relations to the community, were such as to make it eminently proper that he should be employed in the winding up of his own affairs. Mr. Draper resided some twenty-five miles from Pontiac, and was accessible by railroad and telegraph; and I should be extremely reluctant to establish the rule that such a fact is conclusive evidence of fraud. We think this circumstance proves nothing in this case.

The management of the estate by Draper, so far as he controlled it, and of Weeks under him, which is urged as a tim'd reason for holding the assignment fraudulent, appears, so far as we can see, to have been honest and judicious, and furnishes no ground for finding, or even suspecting, that the assignment was made to protect the property from creditors, for the use and enjoyment of Weeks.

It is claimed that Weeks appropriated money and property to his own use instead of applying them to the purposes of the assignment; and it is insisted that this is evidence of the fraudulent character of the assignment. If it were made clearly to appear that Weeks had disposed *393of money and property in the manner charged, with the knowledge and consent of Draper, it would be very strong if not conclusive proof of fraud in making the assignment. But if the acts of Weeks were committed as charged, and were unknown to Draper, they cannot change the character of his title, nor make that fraudulent which was originally honest. The subsequent acts and declarations-of the parties may he resorted to for the purpose of showing the nature of a particular transaction; but they must, have been done or made under such circumstances as would hind both parties, and not be ex parte.]

In short, while we cannot enter npon a minute examination of the evidence, nor consider all the reasons suggested against the good faith of the assignment, we find that there is no sufficient evidence of fraudulent, intent on the part of the actors to justify us in holding the assignment void. In truth, we see no dishonesty at all in the transaction; hut consider Weeks — as most if not all. his creditors did — as honest in the transaction.

The decree is affirmed.

Manning and Campbell J J. concurred.Christiancy, J. concurred in the result.

Citation profile

How this case has been treated — in progress