spring of 1894, when he commenced the construction of the ice plant, and that he lost his wealth in the ice plant venture is completely exploded by a consideration of the record in this case. He only claims to have invested in the ice plant $3,500 in all. Gordon says he invested only $3,300, including the work he did and his draying.

He got from the Bank of Brookfield, $2,400; from AnheuserBusch, $1,846; from Linn County Bank, $1,000-making a total of $5,200. This sum of $5,200 he got personally. This sum is aside from the $5,000 got by Zehr & Gordon from De Graw, and is aside from the $2,000 or $3,000 debts contracted by Gordon & Ziehr and their indebtedness to Fred W. Wolff for machinery. He claims that his dray, ice, coal, and beer business was profitable, that he was making money all this time, but, according to his own statement, he only claims to have invested in the ice plant $3,500 of his own individual money. This would leave him a net reserve of the money obtained by him of Bank of Brookfield, Anheuser-Busch, and De Graw alone between $1,700 to $2,200, individually to himself.

Suits were brought by the Anheuser-Busch Company against John Ziehr for $1,846 and the Linn County Bank for the sum of $5,000. The Bank of Brookfield and also the 412 Linn County Bank had also brought suits by attachment against Ziehr for $2,400 and $1,000 and interest, both of which lastmentioned suits were transferred to the Sullivan county circuit court on the application of the defendant, John Ziehr. Under these attachments, the property described in the petition had been levied upon, and the same property was levied upon and sold under the judgments obtained by Anheuser-Busch Brewing Company and Linn County Bank, above mentioned, in the Linn county circuit court, and at the sheriff's sale of said property, by agreement of all these creditors, the respondent, Harry Lander, became the purchaser of the property described in the petition for the benefit of all these creditors, and he thus prosecutes this suit.

As already stated, the circuit court rendered a decree that the deed to the homestead was not fraudulent, but that to the saloon property was void as to his creditors, and confiscated the rents paid by Gordon after the attachment. It is to reverse that decree this appeal is prosecuted.

1. The deed from John Ziehr to his wife Emma, of date December 22, 1891, on its face declares the consideration therefor was only love and affection, and was therefore a pure gratuity,

but, in addition to this recital, it is made entirely clear that the wife had in no way contributed to the acquisition of this property. She had only been married to defendant John Ziehr about two years when the deed was executed. She brought him no estate whatever by her marriage, being entirely without means. This property was not the product of the joint savings or labor of John Ziehr and his wife, but was inherited from his father. Being voluntary and without any pecuniary consideration moving from the wife, it was void as to all existing creditors of John Ziehr: Jordan v. Buschmeyer, 97 Mo. 94.

It having been shown and conceded that the deed was made to the wife of property inherited and acquired by his means during coverture, the transaction, as to all existing 413 creditors, was fraudulent in law: Patton v. Bragg, 113 Mo. 595, 35 Am. St. Rep. 730; Bump on Fraudulent Conveyances, 2d ed., 200.

The case presents no feature which requires a court to uphold the deed in equity, though it was void at law: Woodsworth v. Tanner, 94 Mo. 124.

While the deed was fraudulent at law because voluntary as to existing creditors, it has long been held in this state that a voluntary conveyance as to subsequent creditors, although the party be indebted at the time of its execution, is not fraudulent per se as to them, but the fact whether it is fraudulent or not is to be determined by all the circumstances: Pepper v. Carter, 11 Mo. 542; Payne v. Stanton, 59 Mo. 158; Frank v. Caruthers, 108 Mo. 569.

What, then, are the circumstances which would justify a court in holding a conveyance fraudulent as to subsequent creditors? The proof of prior debts, the insolvency of the debtor.at the time of the conveyance, or, though solvent, rendered insolvent by the conveyance he makes, a design or purpose to hinder, delay, or defraud those to whom he is about to become indebted, are some of the marked indicia of fraud. In a word, an intent to contract debts and a design to avoid the payment of such debts by the conveyance. It was pointed out by this court in Snyder v. Free, 114 Mo. 360, that the statute simply requires "an intent to defraud" to be shown. Applying these tests to the facts of this case, and we have a grantor, not only indebted at the time of the conveyance, but that conveyance confessedly gratuitous and voluntary of all the property to which creditors would naturally look for the payment of their debts. That conveyance is kept off of record for three months. It is true that this deed was afterward recorded at the county seat, but it must be borne in

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mind that John Ziehr lived in Brookfield and the property was all there, and that he continued to use it and control it just as he always had, and that, as a matter of fact, it was not suspected by De Graw when he loaned him $6,000 that the property was in the wife's name. It requires no corroborative evidence to demonstrate that De Graw or any other prudent investor would not have loaned John Ziehr $6,000 had he known that the very property on which he was to be secured was in Ziehr's wife's name. Nor did the record of this deed under the circumstances relieve it of its fraudulent character: Bump on Fraudulent Conveyances, 4th ed., sec. 293, and cases cited.

Much stress is laid by counsel for defendants upon the fact that the items due the Brookfield Bank at the date of the conveyance were afterward paid, but as to this contention we answer that a great deal depends upon the mode in which this is done. Proving that prior debts have been paid amounts to nothing, if, as in this case, it appears Ziehr was contracting other debts to an equal amount. Any other rule would simply permit a debtor to take the property of subsequent creditors and give it to his grantee. A mere change of creditors while the debt continues will not cheat the statute: Bump on Fraudulent Conveyances, 4th ed., sec. 296, and cases cited; Brown v. McDonald, 1 Hill Eq. 304; Taylor v. Coenen, L. R. 1 Ch. Div. 636; Madden v. Day, 1 Bail. 340, 341; Antrims v. Kelly, Fed. Cas. No. 494; 4 Nat. Bank. Reg. 189. That John Ziehr kept up his credit by paying old debts with the proceeds of goods purchased and overdrafts from time to time we think is abundantly established.

But that this evidence makes out a case of actual, intentional fraud can scarcely be questioned. John Ziehr had learned that an ice plant would cost him nearly or quite $20,000. He knew he had no other property on which he could possibly expect a loan to erect so costly an establishment, except his real estate. His subsequent conduct convicts him of a deliberate purpose to defraud. He testifies himself that, aside from this property in dispute, he had nothing at all, because the $3,500 which he attempts to say he had has vanished 415 and left not a trace behind. When he came to De Graw to borrow the money, he permitted De Graw to believe he still owned the saloon property. He admits De Graw told him he would not take a lien on the ice plant. Indeed, at that time he did not even own the land on which it was later constructed.

It is absolutely incredible that De Graw would have considered the loan at all if he had not supposed Ziehr owned the saloon

property, as he had nothing else with which to secure De Graw.

He was exercising every indicia of ownership. When he told De Graw he would give him ample security he knew he had nothing but this property. His shuffling and procrastinating when De Graw required the deed of trust which he had promised to give are in harmony with his deception throughout.

Without recapitulating all the evidence, it is sufficient to say that it would be against all reason and conscience to permit John Ziehr, through his wife, to continue to enjoy this property as he has from the execution of the deed, after having contrived to obtain the money of his creditors to a large amount on the faith of his ownership, and cover it up in his wife's name, when she had not invested a farthing in it. The courts of equity cannot countenance a scheme like this.

The circuit court properly found that it was John Ziehr's property when it was attached and sold, and that plaintiff, as the trustee of an express trust, had a right to have the deeds to his wife canceled and held for naught, and, under the prayer for general relief, the rents and profits were properly adjudged also to plaintiff for the creditors.

The decree is affirmed.

Sherwood and Burgess, JJ., concur.

FRAUDULENT CONVEYANCES-HUSBAND AND WIFE.-A voluntary conveyance from a husband to his wife is void as to his sureties on his previously executed official bond for all defaults occurring during the time for which the bond was given: Ames v. Dorroh, 76 Miss. 187, 71 Am. St. Rep. 522. A voluntary deed made by a creditor to his wife and son is void as to his creditors: Gentry v. Lanneau, 54 S. C. 514, 71 Am. St. Rep. 814.

FRAUDULENT CONVEYANCES-SUBSEQUENT CREDITORS. A voluntary deed made by a debtor to his wife and son cannot be set aside at the instance of a subsequent creditor having notice, without some proof of actual fraud: Gentry v. Lanneau, 54 S. C. 514, 71 Am. St. Rep. 814. Subsequent creditors can avoid a fraudlent conveyance only upon proof of actual fraud against them, though the grantor was indebted at the time it was executed: Notes to First Nat. Bank v. Maxwell, 69 Am. St. Rep. 73; Gilliland v. Jones, 55 Am. St. Rep. 216.

FRAUDULENT CONVEYANCES-SUBSEQUENT CREDITORS. A voluntary conveyance, made with intent to hinder, delay, and defraud creditors, is void as against subsequent, as well as prior, creditors, though the grantee did not know of the fraudulent intent of the grantor: Gilliland v. Jones, 144 Ind. 662, 55 Am. St. Rep. 210. But a subsequent creditor cannot avoid a conveyance of his debtor, not intended or operating to defraud him, on the ground that it was made to defraud existing creditors: Fullington v. Northwestern Importers' etc. Assn., 48 Minn. 490, 31 Am. St. Rep. 663. The question of fraud, in such cases, must be determined from all the circumstances. The fact of indebtedness at the time of a voluntary

conveyance raises no irrebuttable presumption of fraud as to subsequent creditors: Gentry v. Lanneau, 54 S. C. 514, 71 Am. St. Rep. 814.

FRAUDULENT

CONVEYANCES-CHANGING

CREDITORS. If debts exist when a fraudulent conveyance is made, a change in their form, or in the persons to whom they are due, is immaterial. Subsequent creditors from whom means were obtained to pay off the antecedent creditors are entitled to treat the conveyance as void: Note to Hagerman v. Buchanan, 14 Am. St. Rep. 745. FRAUDULENT CONVEYANCES-RENTS AND PROFITS.-A fraudulent grantee of property holds it in trust for the creditors of the grantor, and, like any other trustee, must hold it intact for their benefit. In a suit to compel him to account for rents received before the conveyance was set aside, an allowance may be made in his favor for money paid out by him for taxes, necessary repairs, and interest on valid pre-existing liens, but not for insurance effected in his name and for his benefit: Loos v. Wilkinson, 113 N. Y. 485, 10 Am. St. Rep. 495, and note.

RIDGEWAY V. HERBERT.

[150 MISSOURI, 606.]

DEEDS OF MINORS-DISAFFIRMANCE.-Whether or not the maker of a deed and lease was a minor at the time of their execution, and whether he disaffirmed them after becoming of age, are issues in an action at law, triable by a jury. Whether such instruments were obtained by fraud is an issue in equity, triable by the chancellor.

ACTIONS—PRACTICE.—If an answer in an action at law admits plaintiff's cause of action and sets up a purely equitable defense, it converts the whole case into a suit in equity, triable by the chancellor; but if such answer sets up two defenses, one equitable and the other legal, plaintiff is still entitled to a jury trial, unless the equitable defense prevails.

DEEDS OF MINORS-SETTING ASIDE-MISREPRESENTATIONS.-A deed executed by a minor may be avoided by him upon his arriving at the age of majority, though he represented himself to be of age at the time of the execution of the deed, and thereby misled the other party to his disadvantage.

DEEDS OF MINORS-SETTING ASIDE-ESTOPPEL.-If a minor brings suit to set aside his deed on the ground of fraud, and in his petition alleges that he was of age when it was executed, he is not thereby estopped in a subsequent suit from petitioning that such deed be set aside on the ground of his minority.

DEEDS BY MINORS-SETTING ASIDE-WASTE OF CONSIDERATION.-If a minor executes a deed, receives the consideration, and wastes it, he may avoid the deed upon arriving at the age of majority without making restitution.

DEEDS OF MINORS-DISAFFIRMANCE.-If a minor executes a deed and wastes the consideration received therefor while he is a minor, the making of a deed to another person as soon as he arrives at the age of majority is a sufficient disaffirmance of the first deed.