Chapin v. Pease

10 Conn. 69 | Conn. | 1834

Bissell, J.

The first question arises upon the correctness of the charge. And here it should be remarked, that it stands admitted on the motion, that the conveyance from Barnabas Pease to Moses Pease, the defendant, was entirely voluntary. This, in connexion with the fact of Barnabas Pease’s insolvency and the claims of the conflicting parties, is to be taken into view, in considering this question. If this be done, it seems to me, that the charge is sustainable, upon the plainest and most obvious principles.

The conveyance from the defendant to Barnabas Pease, in 1817, being intended to defraud the creditors of the former, was void as to them, but good as between the parties. Stat. 247. tit. 40. s. 1. Drinkwater v. Drinkwater, 4 Mass. Rep. 354. Parker v. Proctor, 9 Mass. Rep. 390. Reade v. Livingston, 3 Johns. Chan. Rep. 500. Benton v. Jones, 8 Conn. Rep. 186.

Neither at law nor in chancery, could Barnabas Pease be compelled to reconvey. As between the parties, the conveyance stood on the same ground, as if a full and adequate consideration had been paid.

Whether the conveyance was thus fraudulent, was distinctly put to the jury ; and they have answered the question. As against every body, then, but the creditors of his grantor, Barnabas Pease had a valid title. The record title was in him; and for a period of eleven years, and up to the time of his insolvency, he was held out to the world as the owner of the property.

Under these circumstances, the conveyance from Barnabas to Moses Pease, being voluntary, was fraudulent and void, as to the creditors of the former. Sexton v. Wheaton, 8 Wheat. 229. Reade v. Livingston, 3 Johns. Chan. Rep. 500.

But it has been contended, that it was not competent for the plaintiff to insist, that the conveyance of 1817 was fraudulent, as he was thereby impeaching his own title.

There is much more of plausibility, than of soundness, in this objection. It is an undoubted principle, that a plaintiff cannot be permitted to impeach the title, under which he claims. But a slight attention to the facts will evince, that the principle has no application to the case.

To entitle the plaintiff to recover, it was only necessary for him to remove out of the way the deed of 1828, which bad been interposed by the defendant. This he does, by showing it to be voluntary. Unexplained, this is conclusive; and a case is thus made out, for the defendant to answer. He attempts to do so, by setting up the facts detailed in the motion. May not the plaintiff show these facts to be untrue ; and that these claims of the defendant are unfounded ? And is it to be seriously urged, that in doing this, he is impeaching the title, under which he claims ?

Again: It is objected, that the plaintiff cannot recover, inasmuch as upon the grounds assumed in the charge, and upon which the jury have given their verdict, the property has ever been open to the creditors of Moses Pease. And it has been asked, were they to levy upon it as his estate, would they not hold as against this plaintiff? It will be time enough to settle that question, when it arises. But it may well be asked, whether it is for the defendant to interpose this objection ? Is it for him to say, the jury have found, that I made a conveyance to defraud my creditors, and as the conveyance is void as to them, therefore, a creditor of my fraudulent grantee, may not recover, as against mel It is exceedingly obvious, that the same objection might have been urged, had Barnabas Pease never reconveyed, and the title had been outstanding in him, at the time of the plaintiff’s levy.

I see no reason for granting a new trial, on the ground that the case was not properly submitted to the jury.

The only remaining question is, whether the declarations of Barnabas Pease, offered in evidence, were properly rejected.

The evidence is obnoxious to two objections, either of which is conclusive. In the first place, it is irrelevant. It was offered for two purposes : 1. as conducing to show, that the writing of defeasance was executed simultaneously with the deed ; and 2. to show that the plaintiff had notice of that fact. Of what importance, it may be asked, is the fact itself? The jury have found, that the deed was made with a fraudulent intent, and was void as to creditors. Is the reproach of fraud removed, by showing that a defeasance was executed at the same time? And if the fact were unimportant, it follows, that notice of it to the plaintiff, was equally so. Besides, the conversation took place long after the plaintiff’s debt had accrued : and even if the fact were of any consequence, the notice was entirely nugatory.

But, secondly, admitting the testimony to be relevant, still it was open to all the objections against hearsay evidence. Barnabas Pease was a competent witness, and as the motion shows, testified in the cause. Why not prove the execution of the defeasance by him ? Why should his declarations, not under oath, be received for that purpose ? The evidence, it should be remembered, was not offered for the purpose of confirming the witness, as to any fact to which he had sworn ; but for the purpose of proving a fact, which the party deemed important. In this point of view, the testimony was clearly inadmissible ; and the rule must be discharged.

The other Judges were of the same opinion.

New trial not to be granted.