Clark v. Depew

25 Pa. 509 | Pa. | 1855

The opinion of the Court was delivered by

Knox, J.

Upon the trial of this cause, the plaintiffs below offered in evidence the records of certain judgments, obtained in the Supreme Court of the state of New York, against the defendant’s vendor, Benjamin Wilson.

These were objected to: 1. Because they were not properly certified and authenticated. 2. Because irrelevant.

The certificate was in these words—

“ I, Robert Oakley, clerk of West Chester county, and of the Supreme' Court in and for the said county, in the second judicial ' district, do certify, that I compared the foregoing with the original judgment-roll, now on file in my office, and that the ’ same is a correct copy of the original, and of the whole of such original.

“ In "witness whereof I have hereunto set my hand and the seal of my office, as such clerk, this 81st day of August, 1851.”

(Signed) “Robert R. Oaklet, clerk.”

To this is annexed the certificate of the presiding justice of the Supreme Court for that district, that Robert R. Oakley was, at the date of the certificate, a clerk of said Supreme Court, and that his attestation was in due form of law. The objections to the authentication of these records are: 1. That it does not appear that the whole record is certified. 2. That the certificate is not under the seal of the Supreme Court.

In Pennsylvania, where the history of an action is not enrolled, the record consists of the papers properly filed in the cause, together with the docket; but in New York the practice is the same as in England, to make up a formal record, which is a “ history of the most material proceedings in the cause, entered on a parchment roll,” and when complete, by the entry of the judgment, is called the “ judgment-roll,” and no proceeding in a cause’ is matter of record until enrolled: Croswell v. Byrnes, 9 J. R. 287. The judgment-roll is the record, and the entire record remaining in the court. In particular stages of the case, records may be made up for certain' purposes, such as the unisi prius roll” for the trial; but these records, iu the end, are all superseded by the judgment-roll, and a correct copy of the whole.of such roll is an entire copy of the record.

The clerk certifies ■ that he is the clerk of .the county of West Chester, and of the Supreme Court in and for, said .county, and that the seal attached is'the seal of his .office, as such clerk. .From this it sufficiently appears, that the certificate’is under-.the:seal of the Supreme Court,’for the second, judicial -district .of New York.

The records were also offered,-to prove that ’Wilson was; -largely indebted when he conveyed .to Clark,;and were - certainly relevant in the issue then’being tried.

The'deed from Wilson to'Clark-was¡attacked,, .upon;the.,ground that it. was made to hinder, 'delay, and defraud, creditors; -.and it Was shown that, at the date of’ its .execution,’judgments:,had been obtained against Wilson in the state-of New York, to the,amount of between four and five thousand .dollars, upon which; several: suits

were then.pending in Pennsylvania. .It .was, also in .-evidence hy the conveyancer who drew the deed,¡and by;the. alderman;.béfore whom the acknowledgment was taken,-!and hy thei.witness, to, the deed-and receipt,'that no consideration passed between the. parties in their presence. Notice had- been given,to.the defendant some months before the-trial, that he would-be required to prove what consideration,, if.any, .was paid by-him .to Wilson’for the estate -in dispute. No evidence ¡was given - to. prove consideration, other than the usual receipt at the'foot of the. deed.

Upon this state .of the. facts, the, judge of the District Court instructed the. jury,- that if they-found that the - conveyance from Wilson to Clark bore; such a ratio, as to tend .directly to .defeat the claims of'his creditors,-the’deed would -be void as to creditors, unless founded upon a consideration; and - upon the question of the effect of-the-receipt, in establishing .that a consideration had been paid, the charge was in the. following words:—

“The defendant alleges that-there was-a consideration, and relies,-'to prove its ■ existence, upon the receipt at the.fqotbf the deed. I find it difficult to -tell' you .what weight you should give to this evidence. It is certain, that the receipt might' have been ■written, although-no -consideration actually passed. , So far as.it has weight it must owe it to the presumption in favour of ’fairness, and that things are.,as- they appear to be on their.'face. You must weigh this presumption, .and compare it with the .probability or improbability, that if the defendant had given value,.he could.and would have proved it. I leave the question as one of fact to you. If you find, under the instructions already given, that the deed is without consideration and invalid unless it has one, your verdict will be for the plaintiffs, otherwise for the defendant.”

We can see no just cause of complaint which the defendant below can make to the manner in which these questions were submitted to the jury. If the deed was a voluntary one, and its effect was to hinder or delay creditors; in other words, if the transfer of' this property would have the effect to prevent the collection of Wilson’s debts, a vendee without consideration, whether there was fraud upon his part or not, would take no title as against creditors. There were circumstances attending the transfer from Wilson to Clark calculated to create suspicions as to its fairness. Wilson’s large indebtedness; the pursuit of his creditors, who were just on the eve' of obtaining liens upon his real estate; his anxiety to dispose of it, evidenced by his peremptory instructions to the auctioneer to sell; together with the proof that neither the scrivener, alderman, nor witness saw any money pass, required, at least, that Clark should place himself in the position of' a bond fide purchaser, by showing that he had actually paid an honest price for the property in dispute; and this, too, by evidence other than the mere written declaration of his grantor. It rarely happens that a sum of money exceeding ten thousand dollars is paid by one man to another, in the purchase of real estate, without some one, other than the immediate parties, knowing the facts. In commercial cities, large sums usually pass through banks, or other places of deposit; and in recent transactions, the evidence,' in nearly all cases, is within the reach of the parties. Wilson himself, if living (and we have no evidence that he is not), might have been called upon to prove that Clark had actually paid him the money stated in the receipt. Although the defendant was expressly' notified that he would be required, upon the trial, to prove payment for his purchase, no evidence upon this subject, however remote, was given or attempted to be given by him. If he could have produced such evidence, and did not, the fault is his own;" if he could not have produced it, may it not fairly be inferred, that no such' payment was ever made ? It was left to the jury, as a matter of fact, and found against him. We have no power to disturb the finding.

The question put to Daniel M. Fox was no part of the cross-examination, and therefore properly,rejected. If it was important to show that the defendant had the means to make the purchase, it would have been properly rebutting to the plaintiff’s evidence of fraud.

The bill of discovery filed by the plaintiffs, and the defendant’s answer thereto, when offered together, were not evidence.

This disposes of the whole case.

Judgment affirmed.