¶1(dissenting.) In my opinion, the facts contained in the statement submitted do not render the sale fraudulent in law. The transaction will admit of an honest interpretation; and in that class of cases the question *419is one of fact to be submitted to the jury, or to the court, if the trial is by the court without a jury.
¶2Hothing is said in the statement of facts, as to the intention of Wise. The fact that he afterwards fraudulently concealed and appropriated some of the notes to his own use, may be pertinent evidence to submit to the jury, to prove his original fraudulent intention, but it is not necessarily inconsistent with an original purpose on his part to convert the notes into money and pay his debts with the proceeds.
¶3We ought not to give a construction to the statute of frauds which will interfere with sales when the debtor obtains a fair price for his goods, and takes securities readily convertible into money; unless the evidence shows that it was his object to convert the securities to his own use, instead of paying his creditors. The fact that he afterwards converted them to his own use, and omitted to convert them into money to pay his debts, as they matured, would doubtless authorize the conclusion, without a satisfactory explanation, that he originally intended to defraud his creditors; but such a conclusion would be one of fact, to be derived from all the circumstances of the transaction, and not a conclusion of law, to be pronounced by the court.
¶4When the transfer is in writing, and the terms of it will admit of but one interpretation, and that a fraudulent one, the court may pronounce the transfer fraudulent, as a question of law. (Edgell v. Hunt, 9 N. Y. Rep. 213.) This, however, has been denied by several judges, and may perhaps be still open to further discussion and review. (See Griswold v. Sheldon, 4 Comst. 583; Mathews v. Rice, 31 N. Y. Rep. 460, per Wright, J.; and Edgell v. Hunt, supra.)
¶5But when the transfer will admit of an honest interpretation, like the casé at bar, the mere fact that the debtor took notes on time, in payment for the goods sold, *420will not of itself be sufficient to make the sale fraudulent in law.
¶6The case is not a proper one for this court to base a final judgment upon, as between these parties. "We are not asked to pass upon it as a matte.r of fact; and yet in my opinion it is a question which can only be determined as a question of fact, in view of all the circumstances attending the transaction, taken in connection with the subsequent contract of the parties.
¶7The submission, under section 372 of the Code, should present only questions of law. I think this submission is not authorized by that section, and we cannot with propriety order judgment either for the plaintiff ór defendant, as it involves simply a question of fact.
¶8But if we are authorized to pass upon questions of fact, we should be put in possession of the evidence which is relied upon to prove the facts. And in a case of alleged fraud in the sale of property, all the circumstances attending the transaction should be set out in detail, before we can safely pronounce a judgment.
¶9In my opinion the case should be dismissed, without costs tó either party.
¶10Judgment for the plaintiff.
¶11Mullin, Morgan, and Doolittle, Justices.]