15 Iowa 219 | Iowa | 1863
I. Plaintiff claimed that the consideration for the note of $700 was $315, in money, and a check on Langworthy & Bro. for $385. This claim seems to have been controverted, and plaintiff and another witness spoke of this check as being charged against him on the books of the bank, and referred to such books as showing the amount of the check and its payment. It was also a controverted point whether plaintiff, at the time, had any funds upon which to draw. Defendant introduced these books for the
II. A paper purporting to be signed and sworn to by plaintiff, was offered in evidence by defendant; objected to, and the objection overruled. An execution was issued upon a judgment against Langworthy, to the Sheriff of Jones county. The paper now undef consideration purports to be the answer on examination-of plaintiff, as garnishee, under said execution. The point made is, that the answer was not taken in accordance with any law of the State; that no direction in writing was given by the plaintiff, in execution, to take said answer; that without such direction the whole proceedings by the Sheriff were unwarranted ; and that until the signature was proved, the paper could not be admitted. It is conceded that if the signature was proved, 'the answer was properly received as an admission made by plaintiff. And this proof we aré clearly satisfied was made. Plaintiff .himself, in his deposition, which had been read to the jury, said that his answer (for there was none other) was taken in writing, read over to
III. It is next claimed that the Court erred in giving the following instructions, asked by defendant.
“1. If from the circumstances found you are satisfied that the mortgage, under which plaintiff claims, was made by Langworthy, and received by plaintiff, with intent or understanding between them to defraud, or hinder, or delay the creditors of the mortgagor, and that, at the time the creditors, in the execution under which the levy was made, were existing creditors of said mortgagor, you will find for defendant, and this without reference to what may have been the consideration of the mortgage.
“2. The intent or understanding of the parties to the mortgage, if any such was had by them, at the time of making the same, to hinder or delay the creditors of Lang-worthy, will be sufficient to render the mortgage void, notwithstanding there may have been no actual intent to defraud; and if you believe that the intent or understanding of the parties, as before stated, was to hinder or delay the creditors of Langworthy, you must find for defendant.
“ 3. It is not necessary that there should be direct and positive evidence of the intention of the parties to the mortgage, at the time it was made, to hinder, delay and defraud creditors. It is competent for a jury to find a conveyance
‘14. If you believe that the mortgage was made for a larger sum than was owing, this is a circumstance horn which fraud might be inferred, and if you believe the mortgage fraudulent, in view of all the testimony, you will find for defendant.”
Preliminarily, it is urged by appellant, that these instructions should have been refused, because more than two were written on one sheet of paper, in violation of § 3052 of the Revision of 1860. It is sufficient to say that there is nothing in the record to sustain this proposition. But if there was, we should certainly not be inclined to disturb a judgment, upon this ground, where the objection was made for the first time in this Court.
The point of difference as to the law of the instructions, numbered one and two (as above quoted) is, we think, correctly stated by appellee’s counsel thus: Plaintiff claims that a mortgage made and received with the intent to hinder or delay creditors is not invalid, but that an actual intent to defraud -must be shown in addition to the intent to hinder or delay. This is denied by appellee, he claiming that an actual intent to defraud is not necessary.
Every mortgage may be said, in some sense, to have the effect of hindering or delaying other creditors in the collection of their debts. To the extent of the incumbrance it deprives other creditors of the right to resort to such property in the collection of their debts. • And the same may be said, though not perhaps to the same extent, of every debt which a debtor may contract. Such debts may decrease the chances of existing creditors to make their money, for while the debtor’s property may remain the same, the aggregate indebtedness may largely increase. It is not in this sense, however, that these instructions are to be under
Our criminal statute punishes with fine and imprisonment any one who puts in use, whether as a party or privy, any instrument conveying or creating a charge upon any interest in lands, goods, &c., with intent to defraud prior or subsequent purchasers, or to hinder, delay or defraud creditors, or other persons. § 4395. The words “ fraudulent conveyance,” in the latter part of the section, clearly shows that the intent to hinder, delay or defraud, will impress the instrument with the fraudulent character. To do either, therefore, is punished by the statute. Such punishment or penalty implies prohibition, and that which is prohibited under a penalty, if done, is void. The intent to hinder or delay is a legal fraud, as much so as the actual intent to defraud. And thus understood, the instructions are unobjectionable.
If the third instruction can fairly be construed as meaning that a preponderance of evidence was not required in order to invalidate the mortgage, but simply evidence, however slight, tending to show fraud, it would certainly be erroneous. There is a great difference between the admissibility of'evidence upon the ground that it tends to establish a particular fact, and treating the fact as established by such testimony, though it is entirely overcome and rebutted by other facts and circumstances, or positive and direct evidence. So, while it is quite correct to say that fraud may be inferred from circumstances, if the preponderance of evidence establishes it, and that direct and positive evidence of the fraudulent intent is not required,
In view of these suggestions, what construction shall be placed upon this instruction ? It is certainly very skillfully worded, but we do not think, after all, it can fairly be construed to mean more than that it was competent for the jury to infer fraud from testimony tending to show it, though there might not be direct and positive evidence of the fact. The language is not that the mortgage would be fraudulent if the testimony tended to give it the character, but .that the jury might infer it from such testimonj'-. The whole instruction must be taken together. As thus received, the words “ direct and positive ” have weight, and show the sense in which the word “ tending ”. was used. How strong the tending testimony should be, to justify the inference of fraud, is not stated. It is not fair to assume, however, that the Court meant that .if it had
IY. It is unquestionably true that if A made a mortgage to B for a sum larger than was owing, it would tend, in the absence of explanatory proof, to show an unfair and fraudulent purpose. A flagrant case might be required, if there was no other badge of fraud, to justify the conclusion that the parties from this fact intended to defraud creditors; but a fraudulent purpose might be inferred from it. It is proper to be considered as one of the badges of fraud. The fourth instruction means nothing more than this, and is, therefore, not erroneous.
Y. While it is the undoubted right of the jury to take with them, in their retirement, all books of account, received in evidence under the circumstances provided for and limitations contained in § 3068, this right may be waived by the parties. In this case the jurors, after leaving the box, sent their bailiff for such books. A controversy arose between counsel, as to what evidence of this character had been offered. The truth in the premises is not certified in the bill of exceptions, but we are left to infer the facts from certain affidavits of counsel. From these we cannot resist the conclusion that the Court and opposite counsel understood that appellant’s counsel, in view of the misunderstanding and controversy, consented that all books should be withheld. This was in open Court and was none the less binding nor entitled to less weight before us, for not being reduced to writing. Buie 88 of the District Court, cited by counsel, has no applicacation to such an agreement.
YI. It is objected that the jury took with them the deposition of plaintiff and appellant, which is expressly
YIL The affidavits of the jurors were introduced to show how they construed the third instruction above quoted, that under it they understood “ a preponderance of evidence was not required, but only evidence tending to show fraud. ” These affidavits were read without obj ection, and the question of their admissibility would only become material at this time, if we should conclude that there was anything in them to justify a new trial. Without passing upon the question, we remark that to receive such affidavits would seem to us dangerous in policy and unwarranted upon principle. If the practice should be tolerated, then every verdict would be at the mercy of the understanding of jurors, or a juror even, — such understanding, influenced ever so much and ever so unconsciously, it may be long after he had discharged his duty. The facility with which, to help out an unfortunate suitor, orto excuse the juror in the discharge of an unpleasant duty, these affidavits can be obtained is well known to the profession and courts.
But without following this thought further, we conclude that the affidavits in this case, if properly admitted, present no justification for granting a new trial. The Court below, after hearing all the testimony, and fully cognizant of all the facts, refused to interfere. Taking all the instructions together, we do not see how it would be possible for the jury to fairly draw the conclusion stated. Even when such affidavits are received, we must be satisfied that they had reasonable ground for the construction stated in the
Affirmed.