stances leave no doubt in the mind of the court that the conveyance to Rothchild was made and designed by Weber to defeat the plaintiff in the recovery of any part of his (Weber's) property, or of alimony in her contemplated suit for a divorce. But it is argued by counsel that however fraudulent may have been his acts, Rothchild must remain unaffected, unless the evidence proves that he had knowledge of such fraudulent intent, and participated in it. This is undoubtedly true, if Rothchild's acts were in good faith.

But here two material facts appear, which, under all the circumstances, are of so cogent a character that they seem to call upon him for an explanation; in other words, that he should show that he paid a valuable consideration for the property, and that he did it without notice. The first is, that he made the contract set up in his answer, which, in the absence of any explanation, may well be regarded as creating a secret trust for Weber's own use and benefit; and the second is, that the only evidence offered on the subject tends to prove that the property in controversy was, at the time of the conveyance, of the value of from six thousand to eight thousand dollars. In addition to this, the rental value and use of the property in Portland alone, as shown by Mr. Rothchild's affidavits filed in this cause, and used upon his motion to dissolve the injunction herein, is seventy-five dollars per month. Estimating the value of this property according to the income which it is capable of producing, it ought to be worth, at the very least, from six thousand to seven thousand five hundred dollars, which, added to the value of the farm, fifteen hundred dollars, also included in the deed, and we have an aggregate value of from eight thousand to nine thousand dollars. To sell this property for two thousand five hundred dollars was too great a sacrifice. The price alleged to have been paid was so entirely inadequate as to have put a prudent man on inquiry. But without placing the decision of this case on the ground suggested, there is another question presented which deserves attention. It is the purchaser for value and without notice from a fraudulent grantor who is protected under the statute. Does the defendant's answer show him to be such purchaser? To constitute a good defense, facts must be alleged showing that the purchaser paid a valuable consideration for the property; that at the time of the payment he had no notice of the outstanding equity, or, as in this case, of the fraudulent intent of his grantor, and that he acted in

good faith. The same elements which were necessary to constitute a good plea in bar in this class of cases under the former equity practice are necessary to make a good answer under the code.

The code has only abolished forms; it has not destroyed substance. The answer must therefore "aver that the person who conveyed or mortgaged to the defendant was seised in fee or pretended to be seised, and was in possession, if the conveyance purported to be an immediate transfer of the possession at the time when he executed the purchase or mortgage deed. It must aver a conveyance, and not articles merely; for if there are articles only, and the defendant is injured, he may sue at law upon the covenants in the articles. He must aver the consideration for and the actual payment of it; a consideration secured to be paid is not sufficient": Story's Eq. Pl., sec. 805. Further: "The plea must also deny notice of the plaintiff's title or claim previous to the execution of the deed, and payment of the consideration; and the notice so denied must be notice of the existence of the plaintiff's title, and not merely notice of the existence of a person who could claim under that title. . . . . But the notice of fraud must also be denied generally, by way of averment in the plea; otherwise the fact of notice or of fraud will not be ut issue": Story's Eq. Pl., sec. 806.

Tested by these rules, the defendant's answer seems wholly wanting in substance to present the question sought to be litigated here. It is true, there is no reply to the defendant's answer sent up in this record; but the answer being wholly lacking in substance, it is conceived that no reply was actually necessary. The failure to reply only admits material facts that are well pleaded. It is the bona fide purchaser for value, in good faith and without notice, who is entitled to the protection of a court of equity, as against the person sought to be defrauded by the conveyance. And this brings us to the examination of a very important question in this case, and that is this: Is the plaintiff required to prove a negative, by showing that the defendant did not pay a valuable consideration? or, having shown the fraudulent intent and purpose of the garntor, may he stop and require the grantee to prove that he paid value, in order to protect his title? Here the defendant Rothchild has alleged facts in one part of his answer tending to show that he is a bona fide purchaser for value without notice of this property, but he has offered no evidence what

ever on those issues. The plea of a bona fide purchaser for value as here alleged is an affirmative defense interposed by the defendant, and in this connection it is not perceived that it differs from other affirmative defenses. The party having the affirmative of the issue must offer evidence to support it.

Another rule of law, equally elementary, which is frequently applied in such cases, is, that when a fact is peculiarly within the knowledge of a party, he must furnish the necessary evidence of such fact. In speaking of a conveyance found to be fraudulent on the part of the grantor, in Tredwell v. Graham, 88 N. C. 208, the supreme court of that state said: "The deed itself, though evidence conclusive as to all matters between the parties, furnishes no evidence of the truth of the matters contained in its recitals, as against strangers, for as to them it is strictly res inter alios acta": Claywell v. McGimpsey, 4 Dev. 89; Griffin v. Tripp, 8 Jones, 64. If voluntary, the law pronounces it fraudulent as to creditors, and he who took it must have had notice of that fact. As said by Pearson, C. J., in Cansler v. Cobb, 77 N. C. 30, "when a grantor executes a deed with intent to defraud his creditors, the grantee can only protect his title by showing that he is a purchaser for a valuable consideration and without notice of the fraudulent intent on the part of his grantor." And in Callan v. Statham, 23 How. 477, it is said: "As they aver, the payment was a transaction between themselves, and the principal part of a note was held by the vendee, which he surrendered, the evidence in respect to which is therefore exclusively within their own knowledge; it would have been more satisfactory if they had given some proof in support of the answers, especially when there were other accompanying circumstances tending to excite distrust and suspicion as to the bona fides of the deed."

So, also, in Moshier v. Knox College, 32 Ill. 155, the same rule was applied in a similar case. The court said: "But apart from all this, the appellees ought to retain this decree, because it is shown the indebtedness was for the purchase-money of the premises, and appellant has not shown he was a bona fide purchaser for a valuable consideration, paying his money at the time on the faith of the title so purchased. It was incumbent on the appellant to show, not only that he had a conveyance for this land, legal in form, but that he actually paid for the land. It is not sufficient that he may have secured the payment of the purchase-money; he must have paid it in fact before he had any notice of the appellee's equitable title. This is an essential element in the equity, which must exist in order

to support appellant's claim, which he attempts to uphold. If he has not paid the purchase-money, no wrong is done him by taking from him a legal title which cost him nothing." And the same principle is stated and applied in Florence Sewing Machine Co. v. Zeigler, 58 Ala. 221; Zimmer v. Miller, 64 Md. 296; Venable v. Bank of United States, 2 Pet. 107; Zelnicker v. Brigham, 74 Ala. 598; Purkitt v. Polack, 17 Cal. 327; Brown v. Texas Cactus H. Co., 64 Tex. 396. And the principle is stated as elementary in Bump on Fraudulent Conveyances, page 53.

There is another objection, I think, equally fatal to the defendant's claim. The writing which the appellant set up in his answer was made by him at the same time of the execution of the deed; at least, they both relate to the same subject-matter, bear even date, and are between the same parties. We must therefore hold, especially in the absence of any evidence to the contrary, that they were executed at the same time, and taken together they constitute one entire transaction. Taken together, then, their effect was to create a trust in favor of Weber. This effect becomes distinctly manifest when the terms of the bond are considered. It is therein declared that "one of the inducements, and a material part of the consideration for said conveyance, is the agreement on my part to resell and reconvey all of said real property, and every portion thereof, to said Emil Weber, upon the payment to me by him. of the full sum of three thousand dollars," etc. The meaning of this clause evidently is, that the right to repurchase was a part of the consideration for the deed, and in this way a valuable right or interest was reserved to the grantor, and this of itself would render the deed fraudulent and void: Sims v. Gaines, 64 Ala. 392.

It follows from the views expressed that there was no error committed by the court below, and its decree is affirmed.

LORD, C. J., concurred in the result.

CONVEYANCE TO DEFEAT ALIMONY fraudulent as to wife: Green v. Adams, 59 Am. Rep. 761; Feigley v. Feigley, 61 Am. Dec. 375, note 380; note to Livermore v. Boutelle, 71 Id. 711.

WHAT BONA FIDE PURCHASER MUST SHOW to sustain his claim: Blanchard v. Tyler, 86 Am. Dec. 57, and extended note 62.

PARTY CLAIMING TO BE BONA FIDE PURCHASER must prove it: Union Canal Co. v. Younge, 30 Am. Dec. 212; Jewett v. Palmer, 11 Id. 401; Jackson v. McChesney, 17 Id. 521.

WHEN TWO OR MORE WRITINGS must be held to constitute one instrument: Dunlap v. Wright, 62 Am. Dec. 506, and note 511.

BUDD v. MULTNOMAH STREET RAILWAY COMPANY.

15 OREGON, 418.]

DIRECTORS OF CORPORATION HAVE POWER TO MAKE CALLS or assessments on the corporate stock without showing that they are made for a corporate purpose, or that the business of the corporation required them to be made and paid, and this whether the statute confers such power, or whether it is entirely silent on the subject.

ALL THAT IS NECESSARY TO MAKE CALL or assessment on corporate stock is some act or resolution by the directors which evinces a clear official intent to render due and payable a part or all of the unpaid subscription. NECESSITY OF CALL OR ASSESSMENT ON CORPORATE STOCK is not open to question by the stockholders, but must be determined by the directors themselves.

CORPORATION HAS NO INHERENT POWER to forfeit or sell shares of stock owned by delinquent stockholders. That is not a common-law remedy, and can only be exercised when it is expressly conferred by some statute. DIRECTORS OF PRIVATE CORPORATION HAVE POWER, under Hill's Oregon Code, section 3221, subdivision 6, to pass by-laws providing for the sale of delinquent stock for unpaid assessments, provided such by-laws are "not inconsistent with any existing law," but a resolution especially directed against the interests of any single delinquent stockholder is in no sense a by-law. The majority of directors cannot enforce the payment of a call or assessment, only in a particular instance, designated by resolution.

BY-LAW OF CORPORATION PROVIDING FOR SALE of delinquent stock assessments must be reasonable and general. It must affect all delinquent stockholders and all delinquent stock alike, and must not be directed against the stock or interests of a particular named stockholder. MEASURE OF DAMAGES FOR WRONGFUL CONVERSION OF DELINQUENT STOCK is its value at the time of conversion or within a reasonable time thereafter, but an exception to this rule exists when the stockholder has suffered only a technical conversion without loss, and then only nominal damages can be recovered.

GENERAL RULE OF DAMAGES FOR WRONGFUL CONVERSION of delinquent stock is compensation; the stockholder should recover such sum as will compensate him for the injury suffered by the wrong of the corporation. H. T. Bingham, and McDougall and Bower, for the appellant. Killin and Starr, and Moreland and Masters, for the respondents.

By Court, STRAHAN, J. This is the second appeal in this action. The opinion of the court on the former appeal is reported in 12 Or. 271, 53 Am. Rep. 355. After the cause had been remanded, an answer was filed and issues of fact duly formed. Upon a trial, which was had before the court without a jury, the following facts were found:

"1. That the defendant, the Multnomah Street Railway Company, was organized by the filing of articles of incorporation