Dorn v. Bayer

16 Md. 144 | Md. | 1860

Le Grand, C. J.,

delivered the opinion of this court.

The object of the bill in this case is, to have declared fraudulent and void a bill of sale of certain property from Nicholas Kostner to John Dorn, and, as auxiliary thereto, an injunction restraining the sale of the goods mentioned in the bill of sale, and the appointment of a receiver to take charge of them until the further order of the court. On the filing of the bill, the court ordered the injunction and appointed a. receiver. The defendants answered under oath and then appealed, but this appeal was abandoned, the court continuing the injunction and receiver until the final hearing. The-court, decreed the bill of sale to be void, ‘-'as against the complainant and all other creditors of the defendant Kostner, who may become parties to this suit.*’ The bill does not ask a decree for the sale of the property, nor does the court pass one.,

The facts alleged in the bill are simply these: That the appellee, Bayer, sold to the appellant, Kostner, a house in Bond street,giving him a deed for it, and taking a mortgage on the same for the payment of the purchase money; that at the time of these transactions, Kostner was (he owner of a house on Caroline street, Baltimore, and was the proprietor of certain household furniture and the stock in a confectionary store; that he failed to pay any part of the mortgage debt, and that? with a view to defraud the appellee he sold the house in Caroline street, and fraudulently made the bill of sale to the appellant, Dorn, of the household and other goods; that, in fact? the bill of sale was wholly without consideration and intended to hinder, delay and defraud the creditors of Kostner* The answers expressly deny, under oath, all fraud and aver the perfect bona Jides of the transaction. The bill did not call for the answers under oath, and, there is nothing in the; record to show they were read at the hearing by the complainant; they, therefore, are not to be taken as evidence at final hearing, and can only be looked to by the court in connection with the bill, for the purpose of ascertaining what points are at issue. The decision of the case depends, entirely, upon the proof adduced on the part of the respective-parties. Some portions of it is unintelligible, and other parte of it without any bearing on the merits of the controversy* Yet, there is sufficient in it to warrant the decree of the Circuit court.

It is clearly to be inferred? from the whole proof? that the' defendant, Kostner, had no other property than his house in Caroline street, his household-furniture and confectionary" stock, .and the house on Bond street.

The only evidence adduced‘to show the absence of fraud in the making of the bill of sale? is that of the witness Frederick Kline, who testifies that, whilst he was employed in the preparation of the bill of sale, the defendants, Kostner and Dorn, engaged in conversation as to the amount of the purchase money which then remained due from Dorn to Kostner, and that it was ascertained between them to be $153 or $154 and some cents, which were paid to Kostner by Dorn in the presence of witness. There is no evidence, whatever, of any other payment than that testified to by Kline. If any was made, no reason is given why proof of the amount and time has not been furnished. If he had other property he should have shown it. Birely vs. Staley, 5 Gill Johnson, 455. In the absence of all explanation, such silence on the subject is, certainly, a circumstance of suspicion. If the testimony of Kline stood alone, it would have its proper Weight in rebutting the allegations of fraud, but, when taken in connection with the other evidence, it is no strained inference that the conversation of Kostner and Dorn, in the presence of the witness, Kline, Was preconcerted between them, and was a part of the machinery of the fraud; a conversation intended to lull suspicion and cover up delinquency.

There can be' no stronger evidence against a man than his own admissions. And we have, in this case, the declaration of Dorn, that he had not paid any thing for the goods. The witness George Bayer — -a witness unimpeached — testifies that Dora, in reply to queries put to him, said: “That he was persuaded by Andrew Baumgartner and Mrs. Baumgartner to take the bill of sale for the reason so that Andrew Bayer could not get hold of Kostner’s store,” and, that he had not paid anything for the goods. These admissions fully bear out the allegation of fraud in the bill of complaint, and are fortified by the fact, proven by the witness John Schwert, that “the counters and furniture in the dwelling and store in Pratt street,”- — the dwelling and store to which Kostner removed after the execution of the bill of sale — -“are the same that he had in Bond street, and he removed them irons Bond street.”

(Decided June 15th, 1860.)

Thfe claim of the complainant, and the fraudulent character of the bill of sale, being.established to our satisfaction, we affirm the decree of the Circuit court.

Decree affirmed with costs*