A conveyance without consideration, made more than three months before the grantor's insolvency and when his assets were barely equal to his indebtedness, is fraudulent in fact as to creditors, and may be avoided by his assignee.
PIKE, J.
The law respecting insolvent debtors provides that "all . . . sales and transfers, whenever made, if fraudulent as to creditors, shall be void; and the assignee may recover . . . any property so . . . sold or transferred." P. S., c. 201, s. 26. The phrase, "if fraudulent as to creditors," has been construed to mean such sales or transfers as are frauds in fact, but not constructive frauds, or frauds by intendment of law. "Gifts or conveyances without valuable consideration are not mere constructive frauds, or frauds by intendment of law. They are, as against creditors, fraudulent in fact." Thompson v. Esty, ante, p. 55. See, also, Coleman v. Burr, 93 N.Y. 17, 31; Roberts v. Vietor, 130 N.Y. 585, 600; Smith v. Reid, 134 N.Y. 568, 575.
The conveyance which Ballou made to his wife was without valuable consideration, was made at a time when "his assets" and "the assets of the firm" remaining after the conveyance "were of a value barely equal to the amount of his and the firm's indebtedness" (Gove v. Campbell, 62 N.H. 401, 403), and was "fraudulent in fact" as against his creditors. Thompson v. Esty, supra.
Exception overruled.
CHASE, J., did not sit: the others concurred.