Old Folk's Society v. Millard

86 Tenn. 657

Opinion

Lurton, J.

A decree in a suit between husband and wife alone, based upon a decree fro con-fesso against the husband, there being no proof and no real litigation, establishing a resulting trust in her favor in lands of her husband, and divesting title out of him and vesting same in her, is not such a judicial proceeding as to conclude existing creditors of her husband. Hume v. Scruggs, 94 U. S. Rep., 22; Bank v. Hodges, 12 Ala., 118; Hix v. Gosling, 1 Lea, 561.

Such decree is, however, entitled to same weight and consideration as a deed from husband to wife, reciting a valuable consideration, and not appearing to be a voluntary conveyance. If such a decree is attacked by creditors for fraud, the recital of the consideration upon which it was based, like similar recitals in a deed, are to be taken as prima facie true, and the burden of disproving them is upon the creditor.

Contradictory recitals or slight proof, according to circumstances, may be sufficient to shift the burden. Bump Fraud. Convey. (2d Ed.), 575, and authorities cited.

There is no sufficient proof in this case to overcome ■ the presumption of good faith and a sufficient consideration, and the decree of the Chancellor is affirmed.