13 Barb. 92 | N.Y. Sup. Ct. | 1852
It is objected on the part of the defendants, that this action having been commenced previous to the code of 1851, must be governed by the provisions of the code of 1849, and that 'this being a motion for a new trial on a case, the court will only inquire whether errors of fact have been committed. That the code of 1849 provides only in direct terms for a review by an appeal after the judgment is perfected, and that it would be unjust to the defendants to allow the plaintiffs on this motion to review the questions of law, inasmuch as a remedy is provided by appeal. That on such appeal the defendant is entitled to security; and to allow a review, on motion, of the law, would be a palpable evasion of this provision. This was held to be the true construction of the section under the code of 1849, in Lusk v. Smith, (8 Barb. 570.) That decision was pronounced’ in 1850, and would seem to control this case, were it not for the code of 1851, which extends its provisions to suits existing at the time of its passage. Section 459 of that code, subd. 2 and 3, declare that the provisions of this act apply to future proceedings, in actions- or suits heretofore commenced, and now pending, as follows : Sub. 2. When there is an issue of law or of fact, or any other question of fact to be tried, to the trial and all subsequent proceedings. Sub. 3. After a judgment or order, to the proceedings to enforce, vacate, modify or reverse it, including the costs of an appeal.” Section 265 of the same code enacts, that “ motions for a new trial on a case, or bill of exceptions, motions for judgment on a special verdict or case reserved subject to the opinion of the court, shall in the first instance be
The case in this cause was not settled until about the 12th of August, 1851, after the code of that year went into effect; although the order or stipulation to stay the entry of judgment and for time to make the case was obtained before that time. The provisions therefore of § 459 apply to it. Mr. Justice Paige, who tried the cause, seems to have so determined, as he granted an order under § 265, the day the case was settled, ordering it in the first instance to be heard at the general term. I think the cause is properly here under that order, and that a decision on the questions of law presented by the case will be conclusive, so far as this court is concerned.
The principal question arising in this case, is whether the deed of trust in favor of Margaret Sheridan, is fraudulent as against the creditors of John Emperor. The facts, as found by the learned judge* who tried the cause, negative that idea; and so far as they are conclusive upon the question of fraudulent intent, they must control the decision of the court here. The judge came to the conclusion, from the evidence, as matters of fact, that Emperor was married to Margaret Sheridan in 1834,' and that they cohabited from that time as man and wife, until a short time previous to the execution of the deed, when it was discovered that Emperor had a former wife then living in Ireland, to whom he was married in 1826 ; that not long after Margaret Sheridan was informed that Emperor had a former wife in Ireland, she separated from him, and had not from that time lived .with him as his wife. Since her separation, she had lived with-her children upon the premises conveyed by Emperor’s deed.. The judge further found, that Margaret Sheridan, while she lived with Emperor, from 1834 to 1848, did all the work of her family, and brought up her children without any assistance. He further found that Margaret Sheridan did not know; either at the time of her marriage with Emperor, or afterwards during
It is said that Margaret Sheridan is estopped from setting up her deed, as against the creditors of Emperor, from the fact of her living with him after she was informed of his marriage in Ireland; and that the plaintiffs trusted Emperor in good faith, believing that Margaret Sheridan was his wife. In the first place, the objection is not wholly true in point of fact. A portion of the goods were sold after the execution of the deed, which was recorded in the clerk’s office of Saratoga county, on the day of its date, and which was notice to the plaintiffs of its existence. Again; as to the residue, the plaintiffs had the same
It is further argued that the fact of the cohabiting of Margaret Sheridan with Emperor, after the deed was given, furnishes strong presumptive evidence that her former cohabitation with him was not honest'on her part. This the judge has negatived as a question of fact, and I think very properly. If the services of Margaret Sheridan, as proved, were not such as to raise an implied assumpsit in her favor, yet the strong moral and legal obligation before mentioned, existed on his part, and rendered the transaction valid.
It is contended that the deed is void for uncertainty, because the grantees are not named. The whole legal and' equitable title passed to Margaret Sheridan by the 47th section of the title of the revised statutes relative to uses and trusts. It was immediately turned into a legal estate. (1 R. S. 728. 4 Denio, 442. 6 Barb.. 487.)
The plaintiffs have connected with the case an application for a new trial, on the ground of newly discovered evidence, and of surprise. The principles by which the court is to be governed in deciding a motion upon this ground, are as I understand them, well settled. 1st. The testimony must have been discovered since the former trial. 2d. It must appear that the new testimony could not have been obtained with reasonable diligence on the former trial. 3d. It must be material to the issue. 4th. It must go to the merits of the case; and 5th. It must not be cumulative. (The People v. Superior Court of New- York, 10 Wend. 285 to 292.) Now what do-the plaintiff’s affidavits disclose 1 Mr. Benjamin J. Severance deposed that he has been acquainted with Emperor for nearly eight years last past; that during that time he has lived with a woman by the name of Margaret, who is known as his wife, and by whom he has had seven children j that the said Margaret is well known to the deponent; that she has no other husband, known to him, and has lived with no other man, to his knowledge, except Emperor during all the time he has known them; that early in the fall of 1850, or about that time, the said Margaret gave birth to a child. That during that fall Emperor often, and as he thinks always, spent his nights at home, with the said -Margaret and her children, and also his Sundays, at the house occupied by them in the town of Ballston, within one mile of the place where he (Emperor) worked; and that since that time they have lived together as man and wife. Another witness, Mr. Fuller, deposed that he has known Emperor and Margaret for the last three years; that they have lived together as man and wife for the last two or three years; that Emperor was off at work for a time, but
I. Is the evidence offered material to sustain the plaintiffs’ case, or any issue presented by it ? The complaint alledges, that Emperor intending to hinder, delay and defraud his creditors particularly the plaintiffs, and intending to make a trust for the benefit of himself and his children, and one Margaret Sheridan, and thus keep his property from the payment of his debts, conveyed the premises in question to the said Owen Sheridan in trust for Margaret and her children; that no pecuniary consideration was paid, though one of $100 was expressed in the deed, and that said Margaret is the' reputed wife of Emperor, and that he felt bound to support her as such, which was one reason for making the deed. There is no allegation that the deed was executed with a view to future illicit intercourse between the parties. Margaret Sherdan denies in her answer all knowledge that Emperor felt bound to support her as his wife, and that such feeling entered into the consideration of the deed, but avers the consideration to be as before stated. She admits that she has been the reputed wife of Emperor, but avers that she separated from him in the month of June, 1848, since which time such reputation had ceased. She denies that she has lived with hinvas his wife for a long time past, and in substance denies cohabitation with him as such. The plaintiffs in their reply do not deny, but admit, this allegation, and say that they wei e married several years ago and lived together several
II. But if the testimony would be material, I am of opinion it would be cumulative, and therefore the motion should be denied upon that ground. The fact seems to have been presented on the trial, and to have been passed upon by the judge; for he
' III. But suppose I am incorrect in both the above conclusions. The next question that arises is, do the defendants show reasonable diligence, to procure the proposed testimony, on the trial ? For if they do not, it is well settled a new trial cannot bo granted. (18 John. 489. 10 Wend. 292.) On this question I think there cannot be a reasonable doubt. The defendant Margaret Sheridan resided within half a mile of the court house where the action was tried. She had resided there with her children from the time of its commencement. It is not to be doubted for a single moment, but that if Emperor had continued to live with her as his wife during all that time, and she had given birth to a child of which he was the father, in the fall of 1850, the facts could have been shown by abundance of testimony. The affidavits do not indeed show any great desire or attempt to procure such testimony on the trial. No inquiry was made of Mr. Ashman, for whom Emperor worked during a portion of the time, where he was in the habit of spending his nights, or where he made it his home; nor does it appear that any inquiries were made in the neighborhood of the premises until after the trial. Mr. Bullard does indeed swear that he inquired of several persons, at Ballston, who informed him that Emperor lived at Ashman’s and did not live with his wife; but it does not appear that these persons resided near the premises,
Willard, Hand, Cady and C. L. Allen, Justices.]
or knew any thing about the facts ; nor is it probable they did, for on making inquiries in the right quarter after the trial, he obtained the information of which the plaintiffs should have possessed themselves before, if it was deemed material. Emperor himself, who was subpoenaed by the plaintiffs, and who could have testified to that fact, though called by them, was not examined. If the plaintiffs knew—and they were bound to know, if they intended to present it as a distinct point upon the trial—of the materiality and importance of this evidence, they were required to use all reasonable diligence in obtaining it, by resorting to the place or places where it could most probably have been obtained. Nor is it any ground of excuse to say, they were misled and surprised upon the trial, when the testimony they sought was within their reach, and might have been procured. A party is chargeable with laches who, previous to the trial, knew that the witness, whose testimony he seeks to introduce as newly discovered, must probably from his situation &c. at the time of the transaction, be conversant with the facts in relation to it. (10 Wend. 285.) Here the witness Fuller swears that he derived his knowledge from the fact of his residing near the premises—the very person among others on whom they should have called before the trial. It appears to me, if a new trial should be allowed, under such circumstances, it would enable parties very easily to open a cause and to prepare testimony for a second trial, when they had seen the strength of their adversary’s case, and the weakness of their own. It is not believed the present is a case for extending or relaxing a rule long since established and settled. In every view of this case, I cannot but conclude, that justice has been done the parties, and the motion must be denied, and the judgment of the circuit court affirmed, with costs.