October 15th and 30th, 1839, 117 dollars and 78 cents debt, and 16 dollars costs; that in July, 1840, and August, 1841, he discharged the surplus revenue mortgage, amounting to 119 dollars and 50 cents, making in all 875 dollars and 78 cents, besides the sum paid down at the purchase.

The defendant examined four witnesses, touching the value of the land at the time of his purchase, one fixing it at 1,700 dollars, and the other three at 1,500 dollars. He also proved by John Williams, that on the 3d day of September, 1840, he bought of Isaac High his lands for 2,300 dollars.

The conclusion at which we have arrived, has made it necessary to rehearse the evidence in this cause very much in detail, though much less so than it was delivered. There are some circumstances connected with the alleged fraud which must be taken as established, among which are the indebtedness of Stewart and his absconding. It is also very evident that Kittering has not set forth truly in his answer, the consideration paid for the land. The amount paid on the Evans judgment, exclusive of costs, was 117 dollars and 78 cents, and on the Anderson judgment, 622 dollars and 50 cents, onehalf of which, he says, he was to pay, being 311 dollars and 25 cents. These two sums make 429 dollars and 3 cents, which, deducted from 1,500 dollars, the price of the land, leaves 1,070 dollars and 97 cents; and he says he paid Stewart, in money, 1,071 dollars. It appears, however, from the proof, that Kittering had no knowledge of the Evans judgment until after his purchase; and the sheriff's return shows that 622 dollars and 50 cents was the precise sum long afterwards paid on the Anderson execution, including interest and the accruing costs. The amount of money stated to have been paid was, therefore, a forced balance, made upon data not in the possession of Kittering at the time of the transaction. This fact is stated that full weight may be given to every circumstance clearly appearing in the cause to sustain the decree.

Stewart's default establishes the fraud as to him; but that does not affect Kittering. Perhaps the testimony of Williams would, if that of one witness were sufficient, make out the plaintiff's case. That testimony would show that Kittering knew of Stewart's indebtedness to the plaintiffs, and it would be a reasonable inference from it, that he paid the purchase-money to Stewart with a knowledge of his intention to abscond, leaving his debts unpaid, and that he aided him in his flight. The doubt implied in saying he had made a good trade, if he could hold the land, showed that he apprehended an attack upon his title.

The answer being under oath, we are to consider whether the testimony of Williams is sufficiently corroborated to overcome it. We have seen that the statements of the answer relative to the consideration, were incorrect. The plaintiff's position is, that the Anderson debt was 622 dollars and 50 cents; that provision was made to pay 300 dollars of it; that Kittering was to get from Brenner 311 dollars and 25 cents, and thus get rid of the lien by the payment of 11 dollars and 25 cents; but the evidence does not sustain this position. Williams testifies that this sum of 300 dollars was in his hands, and was so understood to be by the parties, at the making of the deed; that he was to pay it, and did pay it, on the Anderson debt; and the execution shows a credit, July 12th, 1839, "by the hand of 300 dollars." We have no doubt this was the money paid by Williams. Lucas, the clerk, testifies that when John Kittering and Williams applied to him for information as to the liens, he furnished a memorandum of all he knew of. We make the amount of the Anderson judgment, at that time, about 900 dollars. Deduct from this the amount in the hands of Williams, and 600 dollars would remain; to which add the surplus revenue mortgage, which was something over 100 dollars, and these taken from 1,500 dollars, the price of the land, would leave about the amount paid to Stewart, according to the testimony of Williams and the declaration of Kittering, proved by Brenner.

Nov. Term, 1856.

V.

PARKER.

Reconciling this evidence as well as we can, we arrive at the conclusion that Kittering retained some 700 or 800 KITTERING. dollars to discharge the liens and paid the residue to Stewart. This, it is true, does not agree with the statement in the answer; but considering that Kittering was an old man, laboring under some of the infirmities incident to age, that his answer was made more than seven years after the transaction,-and, especially, that he does not set up the mortgage as one of the liens, of which he was certainly informed at the time, and which he undoubtedly would have done had he remembered it,—it is the most reasonable conclusion, we think, that he was mistaken in the history of the transaction given in the original answer.

Independent of the circumstances already considered, the corroborating facts necessary to overturn the answer are few and feeble. The knowledge of Stewart's indebtedness, a rumor of which the answer admits, with the qualification that he supposed it would have been paid by High, is proved by Williams only, while it is shown that as late as 1840, High sold a farm worth 2,300 dollars. Admitting that Stewart made the declaration to Kittering, that his creditors would take his farm if he did not sell it, of which Williams's testimony is the only evidence, it may most reasonably be referred to the judgments of record, for the payment of which he was providing by the sale. Nor is there any corroborating evidence in relation to Kittering's knowledge of the intion of Stewart to abscond, previous to the execution of the deed and payment of the money, nor of his aiding him in his flight. The whole matter rests upon the unsupported testimony of Williams, who, if any fraud was committed, proves himself to have been an active participant in it. Such testimony ought to be strongly corroborated to authorize a decree upon it against the defendant's answer. There is no preponderance of evidence that the land was not paid for at its full value. It is true, that the payment of a full price will not purify a fraudulent transaction; but yet such payment will be

entitled to great weight, where the proof of fraud is not clear. The statute under which the case was tried is, that the plaintiff shall not have a decree against the defendant's answer, unless he shall sustain the allegations of his bill by two witnesses, or by one witness and corroborating circumstances. R. S. 1843, p. 839, s. 44. In this case the corroborating circumstances to prove the fraud are wanting, and the decree of the Circuit Court must be reversed.

Per Curiam.-The decree of the Circuit Court is reversed at the costs of the defendants in error, and this cause is remanded to said Court, with instructions to dismiss the bill.

J. R. M. Bryant and R. A. Chandler, for the appellant (1).

R. C. Gregory, for the appellees (2).

(1) Counsel for the appellant cited the following authorities:

As Kittering did not know of Stewart's intention to abscond till after the sale was complete, there was no fraud on his part which would invalidate the sale. 4 Blackf. 544.-3 Johns. Cas. 371.-2 Johns. Cas. 283. -Frakes v. Brown, 2 Blackf. 295.-1 id. 265, note 2.-Astor v. Wells, 4 Wheat. 466, 486.

The mere fact that the grantor is in debt is no reason why a conveyance should be set aside. 1 Fonbl. Eq. 273, 280.-Stephens v. Olive, 2 Bro. Ch. 90.-Doe v. Routledge, Cowp. 703.-Henniston v. Milton, 2 Willes, 356.-Middleton v. Ld. Kenyon, 2 Vesey, Jr. 410.-Jones v. Marsh, Forrest, 64.-Sagittary v. Hide, 2 Vesey, 44.-Hildreth v. Sands, 14 Johns. 493.Findley v. Cooley, 1 Black f. 262.

But if Kittering's title should fail, he has at least a right to be substituted in place of creditors of Stewart, to whom he has been compelled, as a purchaser, to pay money or lose the land; and to hold the land until his money is refunded with interest. Peet v. Beers, 4 Ind. R. 46.-Story's Conflict of Laws, 654.-Manlove v. Bale, 2 Vern. 84.-Powell on Mortgages, 314, 315; also note 1.-Russel v. Howard, 2 McLean, 489.-Marsh v. Rice, 1 Adams N. H. Rep. 167.-2 Johns. Ch. 503.-Saunders et al. v. Frost, 5 Pick. 259. Stevens v. Cooper, 1 Johns. Ch. 425.-Lloyd v. Johnes, 9 Vesey, 62.

(2) Counsel for the appellee cited the following authorities:

Where testimony of a witness is corroborated by the testimony of a second witness, or any circumstances which give a turn to the balance, the Court will drecree against the answer. Gresley's Ev., p. 4. "The corroboration has, however, been sometimes so extremely slight, that although the fact of the defendant's being an interested, and therefore, at

Nov. Term, 1856.

MILLS

V.

common law, an incompetent witness, is professedly dismissed from the mind of the Court, still there can be little doubt but that this circumstance has a considerable weight." Id.

See, also, Waltin v. Hobbs, 2 Ark. 19.-Janson v. Raney, id. 140.—1 MARSHALL. Phil. Ev. 154, and notes of C. and H.-Young v. Hopkins, 6 Monroe, on p. 23.

Monday, November 24.

MILLS, Administrator v. MARSHALL, Administrator.

Under the R. S. of 1843, if a man died intestate leaving a widow, her right to one-third of the surplus of his estate remaining after the payment of his debts, vested at the moment of his death; and where the wife died before distribution, her third went to her administrator.

APPEAL from the Orange Circuit Court. DAVISON, J.-The case is as follows: In September, 1851, Jacob Snider died intestate, leaving Eliza Snider his widow, and eight children, who are his heirs at law. Hiram Marshall was appointed administrator of Snider's estate. In that capacity he received about 1,300 dollars, money on hand at his intestate's death, which he distributed among the said widow and heirs as follows: To her one-third, and to them two-thirds. Of the amount thus distributed, she received 434 dollars. After this, and before the sale of any property belonging to said estate, and about a month after Snider's death, his widow died. By him she had no issue; but she left children by a former marriage. John Mills, the appellee, administered on her estate. In November, 1853, Marshall, as administrator, &c., filed in the Orange Common Pleas an account wherein it appeared that he had in his hands. moneys derived from the estate of Jacob Snider, to the amount of 2,388 dollars, for distribution. But the judge of that Court having been of counsel for a portion of the distributees, the cause, for that reason, was certified