Page:Federal Reporter, 1st Series, Volume 8.djvu/517

UNITED BTATES V. GEISWOLD. 503 �that amount on that security.. Mr, Bush, to whom the matter was referred by tke cashier, declined the offer on account of the amount, "but after some negotiation and delay of some days, not extending beyond June llth, he directed the latter tolet Griswold have $3,500 ; and because the latter did not wish, as he said, to incur the trouble and expense of making a new note and mortgage, it was arranged between them to use the one already prepared, by indorsing on the note a credit of even date therewith of $6,600, but leaving the mort- gage as it was for the full amount, in which condition it was reeorded and remained. It is probable that Griswold intended to use the excess of this mortgage over the sum really secured by it, to ward off the plaintiff's claim, which he knew to be just and then in suit; but there is no evidence to warrant the conclusion that L. & B. had any object, in taking the note and mortgage as they did, but to secure their loan in a manner to accommodate Griswold, or that they knew or had reason to believo that he had any ulterior purpose in the mat- ter. �This mortgage is not affected by section 3466, supra, giving the United States a priority, because Griswold was; not then legally a bankrupt or insolvent; and, although unable to pay bis debts, and therefore in fact insolvent, the conveyance did not amount to or pre- tend to be a voluntary assignment of all his property for the benefit of his creditors, but only a security for an ordinary loan that would not even constitute an act of bahkrnptcy under the bankrupt law. If it is invalid at all, it is because it is contrary to the statute of frauds, (Or. LawB, 523, § 51,) which is substantially a copy of 13 Eliz. c. 5, and provides, among other things, that every . conveyance of any estate or interest in lands, "made with inteht to hinder, delay, or defraud creditors of their lawful suits, damages, forfaitures, debts, or demands, * * * as against the person so hindered, delayed, or defrauded, shall be void." �The "question of fraudulent intent" is made by the statute "a question of fact and not of law ;" and "the fraudulent intent" of a grantor is not to affect the title of "a purehaser for a valuable con- sideration," without notice of such intent. Or. Laws, supra, §§ 54 and 55. �The false statement of the consideration for the mortgage is a badge of fraud, but not eonclusive evidence of it. Bump. on F. C. 33, 42. And in this oaie the explanation of how it came to be and remain in the mortgage is satisfactory, so far as. the mortgagees are «oncemed; at least, we do not feel warranted in coming to the con- ��� �