Jackson, ex rel. Bigelow v. Timmerman

7 Wend. 436

Opinion

By the Court,

Sutherland, J.

The judge erred in deciding as a question of law, that the deed from George G. Klock to his daughter, the wife of the defendant, was fraudulent and void against the then existing creditors of Klock, on the ground that it was voluntary. Whether fraudulent or not, was in this, as in all other cases, a question of fact for the jury. There is no such thing as fraud in law, as distinguished from fraud in fact. What was formerly considered as. fraud in law, or conclusive evidence of fraud, and to be so pronounced by the court, is now but prima facie evidence, to be submitted to, and passed upon by the jury; Seward v. Jackson, 8 Cowen, 406, in the court of errors, and Jackson v. Peek, 4 Wendell, 303. On this ground a new trial must be granted.

If the deed from Klock to his daughter should be found to have been fraudulent, then it was absolutely void ah initio, and the other points suggested by the counsel for the defendant cannot arise.

New trial granted, costs to abide the event.