explained that when he then found unmistakable evidences of tuberculosis, he dated the commencement of the disease from the first time he had seen the patient. The witness further testified "that it is extremely difficult to diagnose a case of tuberculosis in its incipiency."

Dr. Egbert, testifying for the plaintiff, stated that he treated the insured professionally in March, 1908, and November, 1909; that there was no evidence of tuberculosis when he saw her in 1908, but that she was in the last stages of the disease when he saw her in 1909. He concurred with Dr. Kilroy as to the difficulty of identifying a case of tuberculosis in its incipiency. The doctor was then asked: "Taking the surroundings of this woman as you found her in November and December, 1909, her health and her condition as you found it,— how long, in your opinion, had she been suffering from tuberculosis?" He answered: "It would be impossible to state. I judge it a very acute form of tuberculosis. I don't think she was sick more than five or six months when I saw her, but, of course, I don't know;" that the manner of life and surroundings of the patient were such "as would tend to cause a speedy death if she had tuberculosis."

Dr. Kramer, the last witness for the plaintiff, testified that he treated Mrs. Brennan in April or May, 1908, at which time "she had an inactive liver and was constipated, and seemed to have soreness over the hip;" that from her general appearance he thought she had incipient tuberculosis at that time; that unless she was suffering from that disease, she then had no other serious ailment.

Counsel for the defendant then stated that he had "no defense other than are contained in the proofs of death," and thereupon moved the court to direct a verdict for the defendant, which was done over the objection and exception of the plaintiff.

Mr. W. Gwynn Gardiner for the appellant.

Mr. Benjamin S. Minor, Mr. Hugh B. Rowland, and Mr. L. Randolph Mason for the appellee.

Mr. Justice ROBB delivered the opinion of the Court:

We are constrained to hold that the above provisions in the policy relating to the health of the insured at the date of the policy and her prior freedom from certain diseases, standing alone, amounted to conditions precedent, and hence that the company could at any time escape liability by showing that the insured was not in good health at the date of the policy, or that she had previously suffered from the proscribed diseases. Moulor v. American L. Ins. Co. 111 U. S. 335, 341, 28 L. ed. 447, 449, 4 Sup. Ct. Rep. 466. The statement in the policy that the application upon which it was written "omits the warranty usually contained in applications" is well calculated to mislead the people who purchase this form of insurance, especially as no other provision in the policy contains the word "warranty;" but be that as it may, we are unable to perceive any ambiguity in the provisions upon which the company here relies. We are of the opinion, however, that the so-called incontestable clause constitutes a partial waiver of those provisions. After two years from the date of the policy, it is incontestable, except for fraud, the provision in the incontestable clause relating to misstatement of age being inconsistent with and controlled by the other provision in reference to the same subject. The policy was therefore in force from its date and voidable for two years upon any of the grounds reserved therein, but not thereafter, except for fraud. Mutual Reserve Fund Life Asso. v. Austin, 6 L.R.A. (N.S.) 1064, 73 C. C. A. 498, 142 Fed. 398. In that case there was a provision in the policy that it should not be in force unless the insured was in good health when it was delivered. It appearing that he was not in good health at that time, the company contended that the policy was never in force, and hence that the so-called incontestable. clause never took effect. The court, however, ruled that the: incontestable clause was inconsistent with such a contention, and. that the policy was in force from the day of delivery and payment of the first premium, but voidable before the expiration of the time mentioned in the incontestable clause.

But we think the court erred in not submitting the case to the jury. The so-called proofs of death were prima facie evidence against the plaintiff (Griffith v. Metropolitan L. Ins. Co. 36 App. D. C. 8). We do not wish to be understood, however, as holding that, under the guise of requiring proofs of death, an insurance company may compel a claimant to procure and introduce in evidence proofs of health. Such a ruling would in effect shift the burden of proof, and be as unreasonable as it would be unjust. In this case the claimant agreed that the proof introduced should be considered as part of the proofs of death, and, in the circumstances, is bound by them to the extent of their disclosures, except, of course, as those disclosures were subsequently modified or explained by oral testimony.

Taking into consideration the testimony of the physicians regarding the extreme difficulty of detecting tuberculosis in its incipiency; their testimony as to the condition of the insured at the date of the policy; that they were not sure she had tuberculosis until late in 1909, many months after the issuance of the policy; the testimony of one physician as to the acute form of the disease; the testimony of the agent who procured the policy, and who had the best of opportunity to observe the insured; and the testimony of the brother, we think it a question about which honest minds might easily differ, whether, up to the time of the date of the policy, the insured was afflicted with tuberculosis; in other words, whether or not she was then free from disease, and "in sound health" within the meaning of the policy.

Judgment reversed, with costs, and cause remanded for a new trial. Reversed and remanded.

D. C.]

Syllabus.

HOPEWELL v. WRIGHT.

FRAUDULENT CONVEYANCES; EVIDENCE; BURDEN OF PROOF; FRAUD; NOTICE.

1. The statute of 13 Eliz. chap. 5, relating to fraudulent conveyances, (superseded in this district by sec. 1120, D. C. Code, 31 Stat. at L. 1368, chap. 854), extends its protection not only to technical creditors, but also to those whose claims and demands consist of actions for tort.

2. When the grantee under an alleged fraudulent conveyance has shown the payment of a valuable consideration, the burden is upon the party attacking the conveyance to show that such grantee had knowledge of the fraudulent intent of his grantor. (Following Morimura v. Samaha, 25 App. D. C. 189.)

3. It is not necessary to constitute bad faith on the part of a purchaser from one who has sold his property to defraud creditors, and who has paid a valuable consideration, that he either actually participated in the scheme to defraud, or had actual knowledge of the fraudulent intent of his vendor. Bad faith may exist where the facts and circumstances of the transaction are such as to put him on inquiry. (Following Morimura v. Samaha, 25 App. D. C. 189.) 4. Where the defendant in an action at law, and in anticipation of a judgment being recovered against him, and after a bill in equity by the plaintiff in such action had been filed against him, to enjoin him from disposing of his real estate to avoid payment of the anticipated judgment, sold his real estate worth $5,400 for $4,500, and a title company employed by the buyer examined the title and reported the filing of the equity suit and advised him that the court was without jurisdiction to grant the relief prayed for therein, and that the title was good in the seller; and the buyer prosecuted no further inquiry, but, resting entirely upon the judgment of the title company, accepted a deed of the property and paid the consideration, it was held in a suit by the plaintiff in the action at law after he had recovered a judgment, to set aside the deed as fraudulent, that the grantee had actual knowledge of the pending action at law, of the reduction in price of the real estate, and of the charges made in the bill, and that these facts and circumstances were such as to put a man of ordinary caution upon inquiry, and that the deed was therefore void as against the judgment creditor.

No. 2226. Submitted April 6, 1911. Decided May 1, 1911.

HEARING on an appeal by the plaintiff from a decree of the Supreme Court of the District of Columbia, sitting as a court of equity, dismissing a bill to vacate deeds of land as fraudulent against creditors. Reversed.

The COURT in the opinion stated the facts as follows:

Louisa M. Turnburke, as a judgment creditor of Samuel Koblen, filed this bill April 15th, 1909, against Samuel and Mary Koblen, John T. Wright, Abraham Liebman, and Barney Liebman, to declare void a conveyance made by Koblens to Wright, and another to the Liebmans; to establish her judgment as a lien upon the same, and for an order of sale. Plaintiff having died, Edward N. Hopewell, as administrator of her estate, was substituted as plaintiff. The defendants answered denying the allegations of fraudulent intent in making the conveyances. Testimony was taken, and a decree was entered, May 16th, 1910, dismissing the bill. Plaintiff acquiesced in the decree as to the Liebmans, and appealed from so much of it as related to Wright.

The following facts are undisputed: Samuel Koblen was engaged in the retail grocery business prior to February 14th, 1908, and a boy driving his delivery wagon ran over and injured the said Louisa M. Turnburke. February 14th, 1908, said Turnburke began an action for damages against Koblen, claiming $10,000. At that time Koblen owned the four small, improved lots afterwards sold to Wright, and another small improved lot sold to the Liebmans. On May 23d, 1908, Turnburke filed a bill in equity against Koblen, alleging that the latter was attempting to dispose of said four lots in order to prevent plaintiff from obtaining satisfaction of the judgment she might recover in said damage suit, and praying an injunction restraining him from selling or encumbering the same. The bill alleged that this was substantially all of the property then owned by Koblen. The bill was demurred to, and for failure of plaintiff to set the same down for argument, the bill was dismissed under Equity Rule 33, on July 8th, 1908. An amend