Cooke v. Cooke, 43 Md. 522

Cooke v. Cooke

43 Md. 522 | Md. | 1876

Robinson, J.,

delivered the opinion of the Court.

Judgment was recovered by Harriet Coóke against Israel Cooke, in an action of slander, for the sum of five thousand dollars. While the suit was pending, Israel Cooke, the defendant, conveyed to Theodore Cooke, his son, certain goods and chattels, fhe consideration set forth in the bill of sale being one thousand dollars. Upon the judgment thus recovered, attachment was issued and laid in the hands of Theodore Cook as garnishee.

The bill of sale being valid as between the parties, the appellant contends that its validity cannot be impeached at lato, except by a party having a lien on the property.

Conceding this to he true, it is well settled, we think, in this State, that a party does acquire an inchoate lien on property, by a writ of attachment laid in the hands of the grantee. Curtis vs. Moore, 20 Md., 93; Foley vs. Bitter, 34 Md., 650.

In Wanamaker vs. Bowes, 36 Md., 42, no such lien was acquired, because the writ of attachment itself was invalid.

Then again, it is said, that Harriet Cooke was not a creditor of Israel Cooke, at the time of the execution of the bill of sale, and that the action of slander then pending, is not within the protection of the Statute of 13 Elizabeth, chapter 5.

Now that statute declares that “any conveyance, &c., made to the end, purpose and intent to delay, hinder or defraud creditors and others, of their just and lawful actions, suits, debts, accounts, damages, penalties, &c., shall be void.” The object of this statute, was the suppression of frauds, and ought to receive a liberal construction.

*531So early as Twyne’s Case, 3 Coke’s Rep., 83, it is said to have been resolved by all tbe barons :

“That the statute of 13 Eliz., ch. 5, extends not only to creditors, but to all others toho had cause of action or suit., or any penalty or forfeiture; ” and since then it has been repeatedly held 1o embrace actions of slander, trespass and other torts. Jackson vs. Myers, 18 Johns., 425; Fowler vs. Frisbie, 3 Conn., 320; Hall vs. Sands, 52 Maine, 355; Barling vs. Bishop, 29 Beav., 417; Langford vs. Fly, 7 Hump., 585.

The mere fact that the declaration in the action for slander brought by Harriet Cooke was defective, and did not set forth a good cause of action at the time tlie bill of ^sale was executed, does not in any manner affect tbe question, because the action remained the same, and by'necessary legal intendment was brought for the cause ultimately declared on.

But it is further contended, that Theodore Cooke was a purchaser for a valuable consideration, and that the conveyance is therefore exempt from the. operation of the statute. It is a sufficient answer to say, that the transfer must not only be made on good consideration, but must also be bona fide. If not made in good faith it is void, although the grantee may have paid a full consideration, for the law will not permit one man to assist in cheating another. Cadogan vs. Kennet, Cowper, 432; Worseley vs. DeMattos, 1 Burr., 461; Devon vs. Watts, Doug., 86; Stein vs. Herman, 23 Wis., 132; Robinson vs. Holt, 39 N. H., 557; Glenn vs. Grover, 3 Md. Ch. Dec., 29; Worthington vs. Bullitt, 8 Md., 201. Admitting then, that the hill of sale in question was made on good consideration, yet if it was executed by Israel Cooke for' the purpose of defrauding Harriet Cooke, or preventing her from reaping the fruits of the judgment in the action of slander, should such judgment be recovered, and Theodore Cooke the grantee had knowledge of, and participated, in this purpose, it comes *532within the statute, and is therefore void. The burden of proof, rests of course upon the appellee assailing the conveyance, for the law presumes it bona fide until the contrary is shown.

In regard to the nature and character of the evidence admissible in cases of this kind, involving the fraudulent intent of parties, a wide latitude is allowed. Fraud assumes so many shapes and disguises, that it can only be detected in many cases by a consideration of all the facts and circumstances surrounding the transaction, some of which when separately considered may seem trivial, remote and evgn disconnected. It is not easy therefore, to draw a precise line separating facts such as are fairly admissible, from others which ought to be excluded— the true test after all being whether they tend to throw light upon and-explain the true nature of the transaction. Not only then are the acts and declarations of parties made cotemporaneous' with the conveyance admissible, but also such as are prior thereto, provided they refer to and are connected with it-.- See cases referred to in I Taylor on Evidence, secs. 521, 529 ; also cases in Bump on Fraudulent Conveyances, 543-4-5.

“It is impossible,” says Justice Park in Rawson vs. Haigh, 2 Bing., 104, “to tie down to time the rule as to such declarations,” the question being “ whether the declarations offered in evidence are so connected with the main fact under consideration as to explain its'character, further its object, or to form in conjunction with it one continuous transaction. ”

From this record it appears the action of slander was brought in 1810, and the bill of sale was executed in-ISIS. Now in order to prove the fraudulent purpose of Israel Cooke, the grantor, the plaintiff proposed to offer certain declarations made by the giantor in the years 1866, 1869 and 1810, to the effect “ that he intended to cover up his property and cheat his creditors — that he would carry *533Harriet Cooke, plaintiff below, from, Court, to Court and luear lt,er out, and that he would fix his property so that she should never get a cent, <Sba.” These declarations having been made prior to the institution of the action of slander in which the judgment was recovered, and upon which the attachment was issued in this case, and not appearing to have been made with reference to said suit, it might be fairly contended that they were inadmissible. But it must be borne in mind that so far back as 1866, a controversy was pending between Israel Cooke and Harriet Cooke in the Orphans' Court of Baltimore City, in regard to the estate of their deceased brother Daniel Cooke; and that the slander suit grew out of this controversy. So although the form of litigation varied, and the cause of action differed, the litigation between these parties continued. Under such circumstances we think these declarations were admissible for the purpose of showing the fraudulent intent of Israel Cooke, to be ruled out by the Court, if the plaintiff in the subsequent progress of the trial failed to connect such declarations with the bill of sale in question. This fraudulent purpose of the grantor could not of course affect Theodore Cooke the grantee, unless the plaintiff could further show that he had knowledge of and participated in it.

For the reasons above stated, we also think it was competent for the plaintiff to prove that the conveyances from Israel Cooke and Block to Cleveland, and from Cleveland to Cooke’s wife, was a mere exchange of property by which Cooke was endeavoring to put the legal title of the property in his wife, with a view thereby to place it beyond the reach of his creditors.

Without meaning to intimate an opinion in regard to the weight of the evidence, the question as to the fraudulent intent of Theodore Cooke was, we think, properly submitted to the finding of the jury. This intent on his part, it was necessary for the plaintiff to prove, not how*534ever by tbe testimony of two witnesses, or of one witness with corroborating circumstances as contended for by the appellant, but from all the facts and circumstances surrounding the transaction.

(Decided 16th February, 1876.)

Finding no error in the rulings below the judgment will be affirmed.

Judgment affirmed.