From an examination of the record in this case, appellee’s bill of complaint seems to have undergone many mutations, rendering the pleadings somewhat involved. The bill as originally filed, was a simple creditor’s bill, seeking a discovery of assets belonging to the defendants in the execution, to be applied in satisfaction of complainant’s judgment-The first amended bill was a bill in the nature of a creditors’ bill, the object of which was to remove an obstacle to a sale on execution, created by an alleged fraudulent transfer of property belonging to one of the defendants, and which the complainant sought to subject to sale in satisfaction of his execution. Tire second amended bill, and which on the complainant’s *327motion was ordered “ to stand in place of ” the former bills, was an ordinary foreclosure.bill, by which the complainant sought to enforce the lien of his trust deed upon the property covered by it.
The decree, departing from the relief specifically prayed for, is appropriate in form, to a bill in the nature of a creditors’ bill. After declaring the forfeiture of the lease and sale of the improvements fraudulent and void, and decreeing that the same he removed as a cloud upon Anna Grnssing’s title to the property, it directs a sale by the sheriff upon an execution to be issued to the sheriff to sell the property unless the amount due shall be paid in twenty days. Inasmuch, however, as the bill upon which the case was heard contains a prayer for general relief, it was competent for the court to decree any relief to which the complainant was- properly entitled under the proofs. Was the complainant entitled to the relief decreed?
We shall refrain from going over the entire case, deeming it quite unnecessary, and shall consider briefly, first, whether the proofs were sufficient to sustain the charge of fraud in respect to the forfeiture of the lease and sale of the improvements; and secondly, whether, conceding the forfeiture and sale to be invalid, the decree was appropriate to the case made by the proofs.
In respect to the first point, a careful examination of the evidence has failed to satisfy us that the charge of fraud was made to appear. It is a familiar principle that fraud is never to be presumed. In all the affairs of life, and in all business transactions, good faith is presumed until the contrary is shown. Where fraud in fact is alleged, the burden rests upon the party asserting it to establish it by proof. The complainant’s proof of the alleged fraud came principally from the two Grossings. The record certainly does not present them in a very favorable ■ light. Portions of their testimony are contradictory of other portions on material points, while one of them, George Grossing, seems to have been venal, and willing to testify one way or the other for a consideration. Their testimony is to the effect that there was an arrangement or understanding between Goodman, the agent of Johnston, and themselves, that a for*328feiture of the lease should be had, and a bill of sale of the improvements should be made to Johnston for the purpose of defeating the complainant in the collection of his debt, and ■ that the property should be held by Johnston under a secret trust for the use and benefit of Anna Grussing. Opposed to their evidence is the positive testimony of appellant’s agent, Goodman, who denies that any such agreement or understanding was ever made or spoken of; and also the testimony of Johnston, who is equally explicit in his denial, and who swears that nothing of the kind was ever mentioned in his presence or heard of by him. He says that he reluctantly took a bill of sale of the improvements, and agreed to release the back rent due from Mrs. Grussing at the urgent solicitation of her husband. That the ground rent was considerably in arrear, and it was only after repeated demands for its payment that he finally caused notice to be given, and declared a forfeiture of the lease for non-payment of the rent. The notice, it is true, was not signed, but is seems to have been recognized and acted upon by Mrs. Grussing as a valid notice, and appellee, who was not a party to it, cannot call it in question.
Goodman not only denies that he suggested to Grussing, as testified by him, to let ,the rent run behind so that the lease might be forfeited', but that, on the contrary, he made persistent efforts to get the rent from Ellis, the agent of appellee, down to near the time the lease was determined, and warned him that if the rent was not paid he should forfeit the lease.
We might refer to other portions of the proof tending to corroborate Johnston and Goodman, but it is unnecessary. So far as appears they were reputable witnesses, and the record discloses nothing tending to discredit their testimony. Their statements are all consistent with each other, and with the nature of the transaction; and we think that, as compared with the testimony of the Grossings, their evidence is entitled to far the greater weight. Without going into a further analysis of the testimony, it is sufficient to say we think the evidence preponderates strongly against, and fails to establish the charge of fraud.
But if it were conceded that the forfeiture of the lease and *329the sale of the improvements ought to be treated as invalid, we should still be of the opinion that the decree which the court rendered is not one to which appellee was entitled under the case made by the proofs. It orders a sale of the property unconditionally, without making any provision for the payment of appellant’s ground rent, or determining what were his rights in respect thereto, thus, in effect, creating a forfeiture. Appellant claimed that there was a considerable balance due to him for rent, and offered proof tending to substantiate his claim. If rent was due to him provision should have been made in the decree for its payment. If his claim was controverted, it should have been referred to a master to ascertain what, if anything, was due, or the same should have been found by the court. It is shown by the proofs that appellee received the rents for the premises for a time, and that down to a certain date, ground rent.had been paid to appellant, after which the payments ceased. There is no controversy that he was entitled to ground rent according to the provisions of his lease. The true state of the account was a proper subject to be investigated by a master, and the just balance ascertained and reported to the court, to the end that complete justice might be done by the decree to all parties in interest. Under the well settled principles governing courts of equity, appellee when asking for relief, should have been required to do equity on his part. For this the decree made no provision, and was therefore improper.
For the reasons herein expressed, the decree of the court below must be reversed and the cause be remanded.
Reversed and remanded.