English v. Friedman

70 Miss. 457 | Miss. | 1892

Woods, J.,

delivered the opinion of the court.

1. The errors assigned upon the action of the. court, in admitting evidence showing the statements made by appellants to their creditors or to others, for the purpose of establishing a basis of credit, are not well taken. Though these statements were made months before the deed of assignment was executed and the attachments taken out, and though the affidavits in attachment do not charge, as grounds for their issuance, that the debts sued for were fraudulently contracted, yet, in an aspect wholly different from that just adverted to, the evidence was legitimate and pertinent. The statements, whose admission was objected to on trial, were, in effect, that the large debt of $5,000 or more, and perhaps other debts, of the father of English, who wTas preferred in the assignment, was not in .existence. This large debt was not mentioned in any of the statements, and its existence, by necessary inference, if not by positive averment, was denied. When the deed of assignment was produced, in which the father of the partner, English, was preferred for $5,000, these statements were admissible as tending to cast doubt upon the genuineness of the debt so preferred. The statement that virtually denied the existence of .the $5,000 debt to English’s father was in conflict with the deed of assignment, which alleged and provided for the preferred payment of that sum, and the jury was entitled to all evidence which would shed light upon the genuineness of the alleged debt.

2. This instruction was given by the court on behalf of plaintiffs below: “The coui-t instructs the jury that if they believe from the evidence that the defendant, Holines, was the owner of any land in the state of Tennessee at the date of the assignment, and, after that time, confessed judgment in favor of his sister, and accompanied her attorney to Tennessee for the purpose of' impressing a lien on said property, or subjecting the same to the payment of said judgment, and did not notify the assignee, J. Ii. Peace, of his ownership thereof until at or about the time the same was seized by other creditors of said defendants, then the jury will find for the plaintiff, notwithstanding said Holmes may not have known, at the date of the assignment, that he was the owner of said property.”

Hnder the rule of law announced in this instruction,-no assignment could ever be made by one not possessed of omniscience, at least as to his own affairs and fortunes, past, present and future; and no man, having made an assignment in good faith, would ever dare thereafter to attempt any disposition of any property or estate cast upon him by descent or devise, in another state and unknown to him at the date of the assignment, if the rule is as announced.

In both aspects, the instruction goes beyond the most stringent rules ever prescribed for assignments. If a man in good faith conveys all his known estate, the deed shall' not be avoided because it may afterwards be made to appear that the assignor, by descent or devise, at the date of the assignment, was entitled to some estate in a distant state of which the grantor certainly knew nothing when making his assignment, and which unknown estate was not embraced in the deed of assignment. Bad faith is not to be imputed to one for not doing that which it was impossible, morally, to have been done. To vacate an assignment because not embracing a specific article of property, confessedly unknown to the assignor, would be harsh and unjust indeed.

It is equally true that the subsequent bad faith of the grantor will not avoid a deed of assignment. The inquiry .must always be as to the good faith at or before the making of the assignment — what was the conduct, what the intent in the making of the assignment, and not what obliquity marks the after conduct of the assignor.

Every way the instruction is fatally erroneous, and was, we cannot doubt, largely instrumental in procuring the verdict.

Reversed and remanded.