4 Iowa 524 | Iowa | 1857
This cause, • during its progress and examination^ becomes somewhat complicated, and many questions, some of which are. of intrinsic consequence, are raised; but under the view which we ultimately take, it will not be necessary to enter into a consideration of all of them, and we may pass some of them with brief notice. Under the circumstance that the answer is not sworn to, and that the defendants obtained leave to amend their answer in the nature of a plea, and then filed their original answer with the addition of matter of the proper nature, is raised the question, whether the common-law rule as to answers in Chancery, or the Code, prevails. In other words, it is the question, whether an answer in Chancery can be sworn to with any effect, unless such verification is called for. As desirable as it is that this question should be settled, yet, as it would involve a very considerable discussion, we do not feel inclined, under the pressure of imperative business, to stop and consider it, inasmuch as the necessity of so doing is obviated by the view which we take of the cause. W e feel satisfied that, even at common law, the defendants, having so long omitted to make oath to their answer, and on application having been refused by the
A more important inquiry arises, on tbe aim of tbe petitioner to affect McGregor & Lawes, with knowledge of, and participation in, tbe alleged fraud, by means of tbe evidence afforded in tbe declarations of Howard, subsequent to one or both of tbe conveyances, by bis letters to McGregor and others, and by bis answer in tbe former suit of Wilbur, Brown et al. against these parties. A prominent feature in tbe depositions offered, is tbe declarations and admissions of Howard. A few words may be necessary for tbe understanding of tbe cause of Wilbur and others, before alluded to. On tbe 4th of October, 1853, Wilbur, Brown, Kurtz, Parker and Oorwitb, in their several suits, recovered judgments, in Scott county, against tbe said Howard & Weeks, for tbeir respective claims, amounting in all to tbe sum of $3,548.43, or thereabouts, including cost. On the'14th of January, 1854, they joined, as creditors, in a bill against Howard & Weeks, McGregor & Lawes, and Cannon, tbe intent and object of which bill was identical with that of tbe bill in tbe present cause. Tbe venue was changed from Scott to Muscatine county, and such proceedings were bad, that on the 18th of October, 1855, tbe cause was settled by tbe parties, by an agreement in writing, which is entered of record, and by which those complainants acknowledge tbe receipt of tbe full amount of tbeir respective judgments from McGregor & Lawes, in consideration of which they assign and transfer tbe same to them. Upon tbis, tbe following decree was rendered: “And now on tbis 18th day of October, A. D. 1855, come tbe said parties by tbeir attorneys, and file tbe foregoing agreement in tbis case. Whereupon tbe court do now here oi’der, adjudge and decree, that tbe said cause be finally disposed of as stipulated in said agreement. And it appearing that the plaintiffs
But neither that answer of Howard, nor his oral declarations, nor his letters, are admissible for this purpose. The cases and authorities cited by counsel to support his position, namely, Osborn v. Bank U. S., 9 Wheat. 738, and 1 Greenl. Ev. §§ 176, 178, and those cited by Mr. Greenleaf, do not apply to the present ease. If we trust to the general expressions, “claiming through ” or under, or “deriving title from,” or “taking in succession,” we may be misled. We must look at the facts of the case, and see the actual relation of the parties. Thus, if one takes by inheritance or devise, and in like cases, he is bound by the answer and declarations of his ancestor, and so it is probably with one coming in pendente lite, and the above cases exhibit other instances. But none of these authorities, and perhaps no other one, holds that the grantor can affect the title of his grantee, by his answer or his declarations. The case of Christie v. Bishop, 1 Barb. Ch. R. 105, correctly states the law on this subject, and explains some of the cases cited by counsel and by Mr. Greenleaf.
Without the evidence here alluded to, it is not easy to regard McGregor & Lawes as participating in a fraud— uniting with Howard to defraud his creditors. Nor do we mean to intimate how it would be, were the answer of Howard received, for we have not looked at it, having first settled the question of its admissibility. But it is said that such evidence is receivable against a co-defendant, they being shown to be colluding — to be uniting in a common purpose. Then, this purpose must first be made out by other evi
But there is a view of the ease, which is competent to do justice to all the parties, without the application of harsh rules, and which we think far more adapted to the actual state of the facts. There is some evidence tending to show that McGregor & Lawes took the property as in mortgage, or more correctly speaking, showing that whilst they actually bought it, yet they were not desirous to hold it, but that Howard, or even any creditor who would satisfy their demands, might take it. This appears to our minds a more just construction to put upon the language of McGregor to some of the witnesses, and that in his letter to Howard. Thus, when Barrows was negotiating about selling the property on commission, McGregor said he wanted “ what was due him on the premises, in cash.” To Cook, he said,' “ he did not want the property, but wanted his money to use in his business ;” and in his letter to Howard, he says, “knowing as I do, that we bought the property in good faith, and for what we considered a valuable consideration, I feel confident that we can hold it; but I still say to you, as heretofore, that we will, at any time, while we own the property, deed it back to you for what it has cost us, and a fair compensation for the expense and trouble we have been at, and I still hope to see you back and re-instated.” It is true that some points look unfavorable for these defendants;
Perhaps enough has been shown to bring us to our conclusion, and the result, at which we have arrived, after a careful consideration, is, that if the property were still in the hands of McGregor & Lawes, they must be regarded as holding it as in mortgage. And that the property having been sold by them to an innocent purchaser, for a valuable consideration, which they have received, they must stand accountable for the proceeds, and are chargeable for the residue, after the payment of their just demands.
Several questions of inferior moment are suggested in the progress of the case, but the foregoing views will cover all that is important, save such as connect themselves with the only remaining one, and that is, what are to be treated as the just demands of the respondents, McGregor & Lawes, or by what rules shall they be ascertained ? These demands divide themselves into three clases. First. Their payments
The result of the inquiry directed in the following decree, may accord with and sustain the decree of the District Court, but that court has rendered its decision absolutely, without the inquiry, which we deem requisite. In other words, that court proceeds upon the ground of absolute
Decree reversed.