grantor to a third person. Stewart v. Exchauge Bank, 55 N. J. Eq. 795 (38 Atl. Rep. 952). Particular evidence held insufficent to make a prima facie case of fraud. Ensign v. Fisher, 14 Utah 477 (47 Pac. Rep. 950). Particular evidence held sufficient to set aside a conveyance as a fraud upon creditors. Ferguson v. Daugherty, 94 Va. 308 (26 S. E. Rep. 822). Particular evidence held insufficent to show a deed to be fraudulent as to creditors. Frank v. Stephenson, Miss. (21 So. Rep. 778); Wilkinson v. Buster, 115 Ala. 578 (22 So. Rep. 34).

Sec. 387. Setting aside - Burden of proof- Evidence. The creditor assailing a conveyance as fraudulent has the burden of proof. Coyne v. Sayre, 54 N. J. Eq. 702 (36 Atl. Rep. 96). When it is made to appear that the debt due the plaintiff antedated the conveyance and that the grantee took his deed with knowledge of the debtor's insolvency, the burden of proof is on the grantee to show by clear and convincing evidence the valuable and adequate consideration passing from him for the land, in what it consists and how it was paid. Martin v. Berry, 116 Ala. 233 (22 So. Rep. 493). Evidence which merely excites suspicion that fraud may have existed is not sufficient; it must reasonably justify an inference of the actual existence of fraud. Taylor v. Wands, 55 N. J. Eq. 491 (37 Atl. Rep. 315; 62 Am. St. Rep. 818). Under Va. Code, § 3351, the plaintiff may call a party having an adverse interest, as a witness to prove the alleged fraud and he is entitled to the benefit of the facts given by his testimony. Ferguson v. Dougherty, 94 Va. 308 (26 S. E. Rep. 822). Where fraud in the sale or purchase of property is in issue, evidence of other frauds of like character committed by the same parties at or near the same time, is admissible. Piedmont Bank v. Hatcher, 94 Va. 229 (26 S. E. Rep. 505). A deed will not be set aside as fraudulent where the evidence shows only one incident in the whole transaction which is not consistent on its face with the theory of good faith. Kleeb v. Frazer, 15 Wash. 517 (47 Pac. Rep. 11). Where the intent of the grantor is in issue when his conveyance is attacked on account of fraud, his statements made prior to the transaction, and relating thereto, are admissible to establish his motive.

Thomas v. McDaneld, 102 Ia. 564 (71 N. W. Rep. 572). Where a deed from a husband to his wife is assailed by his creditors she may testify as to the payment of the consideration by herself. Kelly v. William Sharp Saddlery Co., 99 Ga. 393 (27 S. E. Rep. 741). In such a case admissions of the fraud made by the husband when his wife was not present are held admissible. Coburn v. Storer, 67 N. H. 86 (36 Atl. Rep. 607). Where the husband conveys real estate to his wife through a third party by means of a sham sale, the husband's declarations as to the transaction and his intentions in regard to the property made while the title was held by the third party, are admissible in an action by his creditors to set aside the transaction as a fraud. All the transactions of both the husband and wife concerning her acquisition of the property, are admissible in evidence. Poundstone v. Jones, 182 Pa. St. 574 (38 Atl. Rep. 714). For case determining particular questions of evidence, see Morgan v. Taylor, Tenn. (42 S. W. Rep. 178).

Sec. 388. Badges of fraud-Withholding instrument from record. Mere relationship of the parties to the conveyance alone is not a badge of fraud which calls for an explanation. Cathcart v. Grieve, 104 Ia. 330 (73 N. W. Rep. 835). The fact that an absolute conveyance was in fact a mortgage, does not render it fraudulent as to the grantor's creditors where no fraud was intended and none of the creditors were in fact misled. Brown v. Bradford, 103 Ia. 378 (72 N. W. Rep. 648). The mere fact that a mortgage is not recorded at or near the time of its execution does not render it fraudulent. It only becomes so by virtue of some agreement or arrangement between the mortgagor and mortgagee which has for its purpose the protection of the mortgagor, in order that he may continue his business on a fictitious basis, and obtain credit which he could not otherwise receive. Such deceit requires the concurrence or connivance of both parties. The mere hope of the one or the neglect of the other will not amount to fraud. In re Bloomfield Woolen Mills, 101 Ia. 181 (70 N. W. Rep. 115). The principle of this case is supported by Brown v. Bradford, 103 Ia. 378 (72 N. W. Rep. 648); Campbell v. Remaly, 112 Mich. 214 (70 N. W. Rep.

432); American Freehold Land & Mortgage Co. v. Maxwell, 39 Fla. 489 (22 So. Rep. 751).

A deed cannot be set aside as a fraud upon creditors on account of the parties withholding it from record by agreement, unless it is shown that such agreement was made for the purpose of deceiving others or had that effect. First Nat. Bank v. Rohrer, 138 Mo. 369 (39 S. W. Rep. 1047.) Particular case in which the withholding of a mortgage from record given to secure advancements made to the mortgagor, was held void as to a creditor extending credit on the faith of the mortgaged property. Collins v. Corwith, 94 Wis. 514 (69 N. W. Rep. 349).

HOMESTEAD.

EPITOME OF CASES.

Sec. 389. Who may claim a homestead. A nonresident of the state of Tennessee cannot claim the benefit of the homestead statutes of that state. Farris v. Sipes, 99 Tenn. 298 (41 S. W. Rep. 443); McClellan v. Carroll, Tenn.

(42 S. W. Rep. 185). In the second case cited it is held that the homestead rights of a resident of Tennessee who becomes a resident of another state, cannot be preserved by his wife remaining in the former state and residing on the lands. Under the statutes of Dakota territory, as they existed in 1888 (Dak. Comp. Laws, 1887, §§ 2449-2468), a single man who never had a wife or child, was not entitled to claim a homestead exemption. Mc Canna v. Anderson, 6 N. Dak. 482 (71 N. W. Rep. 769). A married woman living with her husband may claim a homestead under Ill. Rev. Stat., ch. 52, § 1. entitling "every householder having a family" to claim a homestead. Zander v. Scott, 165 Ill. 51 (46 N. E. Rep. 2). An abandoned wife may claim a homestead, Watterson v. E. L. Bonner Co., 19 Mont. 554 (48 Pac. Rep. 1108; 61 Am. St. Rep. 527); but a married woman cannot claim a homestead in land as the "head of the family" while she has a husband who lives upon the same land, although in a separate house,

and they have not cohabited for several years and she supports the family. Barry v. Western Assur. Co., 19 Mont. 571 (49 Pac. Rep. 148; 61 Am. St. Rep. 530). Construiug Okla. Stat. 1890, § 2860, which exempts a homestead to "the head of every family," it is held that a wife is not entitled to a homestead out of her own land, nor is the husband entitled to a homestead in the lands belonging to his wife. Exemption is to the husband as the head of the family and of the property of the husband. McGinnis v. Wood, 4 Okla. 499 (47 Pac. Rep. 492).

Sec. 390. In what lands a homestead may be claimed. There cannot be two homesteads in a single tract of land belonging to different persons at the same time. Hay v. Whitney, 59 Kan. 771 (51 Pac. Rep. 896). An undivided interest in lands accompanied by exclusive possession will support a homestead right. Brokaw v. Ogle, 170 Ill. 115 (48 N. E. Rep. 394). Where the occupancy of the life tenant is in the nature of a homestead claim, the remainderman cannot claim a homestead in the same lands. Brokaw v. Ogle, 170 Ill. 115 (48 N. E. Rep. 394). Citing, Murchison v. Plyler, 87 N. C. 79; Merrifield v. Merrifield, 82 Ky. 526; Cornish v. Frees, 74 Wis. 490 (43 N. W. Rep. 507). Applying the principle that whether the claimant's title to the land be good or bad is not a matter which concerns the creditor, it is held that a person can claim a homestead on public land of the United States. Watterson v. E. L. Bonner Co., 19 Mont. 554 (48 Pac. Rep. 1108; 61 Am. St. Rep. 527). Citing, Spencer v. Geissman, 37 Cal. 96 (99 Am. Dec. 248). In Michigan it is held that a homestead right may be claimed in land held by a tenant in common if the whole does not exceed in quantity and value the homestead limit; but where the widow and children of a deceased tenant in common occupies the common estate as a home with the decedent's cotenant, the wife of one of the children living on the place has no homestead right therein, her husband not having any exclusive possession in any particular part of the land. Hooper v. McAllister, 115 Mich. 174 (73 N. W. Rep. 133). Following, Tharp v. Allen, 46 Mich. 389 (9 N. W. Rep. 443). In Tennessee it is held that neither the husband nor wife can

claim a homestead in land which is her separate property. Adcock v. Mann, Tenn. (38 S. W. Rep. 99). Particular contract of sale held not to give a vendee an interest in property to which a homestead right could attach. Rentchler v. Lawton, 113 Mich. 14 (71 N. W. Rep. 330).

Sec. 391. Lands acquired in exchange for property liable for debts. A homestead may be acquired in lands so as to exempt them from debts created before their acquisition but not then reduced to judgment, although such homestead was obtained by exchange for property liable for the payment of such debts. Paxton v. Sutton, 53 Neb. 81 (73 N.W. Rep. 221). The court say: "A few cases are opposed to the views we have expressed,-notably, Pratt v. Burr, 5 Biss. 36 (Fed. Cas. No. 11, 372). The reasoning of that case would, however, defeat the exemption as against any preexisting debt, and is based, as in other cases taking a similar view, on the injustice and apparent immorality of a claim of exemption under such circumstances. Such cases neglect the fundamental principle that the courts cannot set aside valid legislative acts, or ingraft amendments upon them, merely because the judges deem the legislation unwise or even unjust. In all cases of exemptions the creditor suffers because the legislature has deemed the importance of protecting the family in its home and sustenance to be greater than that of enforcing the payment of debts. The great weight of authority is, however, in accordance with the opinion we have indicated. In Comstock v. Bechtel, 63 Wis. 656 (24 N. W. Rep. 465), the question was squarely presented whether a conversion of non· exempt property into exempt, for the sole purpose of placing it beyond the reach of creditors, would subject the latter property to the payment of debts, existing at the time of the conversion; and the court held that it would not; that the property, from its character, remained exempt, and the only remedy of the creditor was by attacking the sale of nonexempt property. Cipperley v. Rhodes, 53 Ill. 346, was a case like the one before us, even to the fact of the conveyance of the homestead to the wife, and the homestead was held exempt because it was not a fraud on creditors to buy a homestead which would be beyond their reach.' So in Jacoby v. Distil