| Wis. | Nov 19, 1860
Lead Opinion
By the Court,
The first question presented by ^ exceptions is, whether the testimony of Cameron, as to the statements made by Seymour after the assignment, as to his intention in mating it, should have been admitted. "We think it was properly excluded. The statements of Seymour were not those of a party to the suit, and were not admissible on that ground. They were not admissions by a vendor with respect to his title, made before he had parted with it. They were no part of the res gestae. ~We can therefore see no principle of evidence upon which they could be admitted. It is undoubtedly true, that where the intent of a party to a sale is in issue, his statements at the time and so connected with the transaction as to be a part of the res gestee, are competent evidence to show such intent, even though the person is not a party to the suit. But where they are not so connected with the transaction, but are offered as -mere admissions by him after it occurred, he not being a party to the suit, they are no more competent for that purpose than they would be to prove any other material fact. They are then mere hearsay. And although a person may be presumed to know very well what his intention was, yet that fact does not make -his mere statements, not under oath, proper evidence to prove it, any more than any other material fact, equally well known to a witness, could be proved in the same way.
The next exception was to the refusal of the court below to instruct the jury, that if they found “ that Asa N. Seymour, the assignor, believed himself to be solvent and able to pay all his debts, at the time he made the assignment, and made it under the expectation and belief that there would be a surplus, then and in that case the assignment was fraudulent and void, as to the creditors of the assignor.” Now it may well be said that the fact in question might be very strong evidence from which the jury could infer an intent to hinder and delay creditors by making an assignment.
But the answer to the exception is, that the instruction, as asked, submitted to the jury only the question of the assign- or’s belief as to his solvency, and from this, if found, derived absolutely the conclusion that the assignment was invalid, without submitting to them at all the question of intent. The latter was the material question for the jury, and the assignor’s belief was only evidence proper for them to consider in determining it. Although the defendants, therefore, might have been entitled to a proper instruction, submitting such belief as evidence from which the fraudulent intent might be inferred, they were not entitled to the one asked, but it was properly refused.
The only remaining question is, whether the fact that the assignor had real estate not conveyed to the assignee, rendered the assignment void. We are satisfied that it did not. The answer to this objection is, that if the property is not conveyed, it is left as it was before, liable to seizure by the
On the whole, we see no error, and the judgment is affirmed, with costs.
Rehearing
By the Court,
A motion for rehearing was made and argued in the case, and the counsel for the appellant, while not disposed to question the correctness of the decision already made, as to the admissions of a vendor made after he had parted with his interest, yet claim that here, the admissions which they proposed to prove by the deposition of Cameron, were made before the assignment was complete, as schedule “A” was not then annexed to it. But we think this schedule was not essential to the validity and effect of the assignment. The instrument itself granted all the property of the assignor, and then provided that a schedule should be made and annexed more particularly describing it. The authorities are, that such an instrument is valid and takes effect from its delivery, whether such schedule is made or not. Ely et al. vs. Hair et al., 16 B. Mon., 239; Clarke vs. Mix, 15 Conn., 177; Woodward vs. Marshall, 22 Pick., 473; Keyes vs. Brush, 2 Paige Ch., 311" court="None" date_filed="1830-11-16" href="https://app.midpage.ai/document/keyes-v-brush-5547844?utm_source=webapp" opinion_id="5547844">2 Paige, 311. The assignment, therefore, being valid without the schedule “A,” and it having been delivered, and the assignee being in possession before the admissions offered in evidence were made, we think they come fully within the principle of those cases which exclude the admissions of a vendor made after he has parted with his interest, to prejudice the title of the vendee. 2 Chand., 160" court="Wis." date_filed="1850-06-15" href="https://app.midpage.ai/document/donaldson-v-johnson-6596651?utm_source=webapp" opinion_id="6596651">2 Chand., 160.
We assume that schedule B, specifying the debts to be paid, and the order of payment, was made and annexed to the assignment when executed. The instrument itself so speaks of it, and the testimony of Cameron relates only to the “schedules of the property,” which, he says, were “not in form,” and to which Bates, the assignee, told him “ some additions were yet to be made.” The arguments of the appellant’s counsel, founded upon the supposed power still existing in the assignee at the time of his admissions, to desig
Tbe motion for a rebearing is overruled, witb costs.