38 P. 192 | Or. | 1894
Opinion by
The errors assigned arise upon the court’s instruction to the jury. The instructions are lengthy, but the only portions thereof necessary for us to notice here are as follows: “If you find from the evidence in this case that said R. A. Graham made to the plaintiff the sale under which it claims to be the owner of the property in the complaint described, with the intent to hinder, delay, or
1. These instructions were challenged as not the law applicable to the case under the issues. The controversy is whether, in an action for the recovery of personal property, when the defense is sought .to be made that such property was transferred to hinder, delay, or defraud creditors, such defense should be alleged in the answer, and, if so, whether it was error to instruct the jury upon that question when not so alleged. ! It was strenuously insisted by counsel for defendant at the argument that a denial of property in the plaintiff, and the plea of property in and possession of Graham, a third person, is sufficient to let in evidence that plaintiff’s holding and title is in fraud of Graham’s creditors. Many authorities are cited in support of this contention, but most, if not all,
The instructions of the court below to which exceptions were taken would seem to indicate that evidence was given tending to show that R. A. Graham had sold or transferred the property in dispute to the plaintiff for the purpose of cheating, wronging, and defrauding his creditors, in which purpose plaintiff participated, or at least was chargeable with knowledge thereof. Under the allegations of the complaint plaintiff is required to show title in himself, or a present right of possession. Any evidence which would tend directly to disprove his title or right of possession would be pertinent under the specific denials of the answer; and the question recurs whether the evidence assumed by the instructions to have been given tends to this end. Such evidence may impeach or overthrow plaintiff’s title, but it cannot be said that it disproves it. In fact, if it be conceded that the plaintiff purchased the property directly from Graham, the effect of such evidence would be to show that it had title, and one absolutely good as against Graham. When the statute says that a sale or transfer of property made for the purpose of hindering, delaying, or defrauding creditors is void as to them, such a sale or transfer is, in legal contemplation, only voidable, and that at the instance of a creditor. As between the parties, the sale or transfer may he absolute and unimpeachable. Unless a creditor moves, the title stands, and is good against all the world; so that there is a distinction between showing a want of title, and in impeaching or overthrowing it. These considerations, under the rule laid down in Buchtel v. Evans, would make the defense relied on new matter. Another element concurs to make this new matter, and that is the alleged fraud committed as against creditors. Usually fraud cannot be proven unless alleged by the pleadings, as it is a general and well estab
2. But counsel for defendant contend that an exception exists as to the rules of pleading applicable to actions for the recovery of personal property, and that under a general denial any state of facts may be shown to defeat the plaintiff’s title. This doctrine is not tenable under our Code. The Colorado code practice is very similar to ours, and the direct point at issue has been several times decided in that state. In Tucker v. Parks, 7 Colo. 70, 1 Pac. 427, the defendant sought to attack an assignment for fraud, and thereby avoid plaintiff’s title. Beck, C. J., speaking for the court, said: “Neither fraud nor any other matter in avoidance of plaintiff’s title, was set up in the answer. The plaintiff proved his title and right to possession by producing in evidence the deed of assignment. Defendant then attempted to avoid the deed by proof of circumstances tending to show that it was given in fraud of the rights of creditors, and void for that reason. This testimony was not admissible. Fraud must be specially pleaded in an answer as well as in a complaint. There were no facts stated in the answer apprising the plaintiff that his title would be assailed in this manner. ” In Seeleman v. Hoagland, 19 Colo. 231, 34 Pac. 995, a case identical with the one at bar, the court says: -“It is now
3. It is urged, however, that as no objections were taken to the evidence offered to defeat plaintiff's title upon this ground, and the evidence having gone to the jury, it was not error in the court to instruct the jury touching such evidence, even though it tended to prove a case broader than the pleadings disclosed. The former decisions of this court are decisive of that question. “An instruction upon matters not put in issue by the pleadings is erroneous, and furnishes cause for reversal”: Buchtel v. Evans, 21 Or. 309, 28 Pac. 67; see also Hayden v. Long, 8 Or. 247; Marx v. Schwartz, 14 Or. 178, 12 Pac. 253; Woodward v. Oregon Railway and Navigation Company, 18 Or. 289, 22 Pac. 1076. We conclude, therefore, that the court below was in error in giving the instruction complained of, and its judgment is therefore reversed and a new trial ordered. Reversed.