Page:Federal Reporter, 1st Series, Volume 3.djvu/803

796 FSDSBAL BSPOBTBB. �sonable cause to believe the said E. Truman Peckham to be insolvent when they accepted said deeds, and knew that said mortgagea were made in fraud of an act entitled, 'Au act to establish a uniform System of bankruptcy throughout the Umted States,' passed March 2, 1867, and the several acta in amendment thereof and in addition thereto." �As conceded and assumed in argument at the bar, so must it be conceded here, that here arises the pivotai point of the cause or series of causes under discussion. Had there been no sale of the laud, and the assignee had filed his bill to set aside the said mortgages as void, upon him would have rested the burden of sustaining by satisfaetory proof the threefold allegation above quoted, to say nothing of the absence of any allegation as to the intent of the baukrupt. The same bur- den rests upon him here. His right to retain said proceeds, as against the demand of the mortgagees, depends upon his establishing by a preponderance of evidence the three afore- said allegations; it being understood to be an admitted fact that the intent of the bankrupt was to seeure his crediter brother, and brother-in-law. To this conclusion I have ar- rived after a deliberate consideration and study of the plead- ings and evidence submitted to me, and therefore proceed to consider the questions presented : �1. Was the said E. Truman Peckham insolvent at the time of the execution and delivery of the mortgage deeds in ques- tion? �As already stated, the assignee is bound to satisfy the court, by a preponderance of evidence, that the bankrupt ■waa insolvent at the date speciiied. This, I must adjudge, he has failed to do. Indeed, it may be questioned whether any evidence even tending to support this allegation was offered, other than a copy of a writ of attaohment, which was admitted under an objection which I am constrained here to adjudge well founded, and an oiïer to produce from the files of the district court the original inventory and list of debts filed by the bankrupt, Peckham, at a certain stage of thia bankruptcy proceeding in his case, also admitted under objection, now adjudged well taken. ����