54 Miss. 158 | Miss. | 1876
delivered the opinion of the court.
On Aug. 17, 1868, David M. Fulton, the complainant below and appellant here, bought at sheriff’s sale a certain tract of land in Madison County, belonging to Ivory F. Woodman, known as the Sanders place. The sale took place under and by virtue of a decree in chancery, rendered on Feb. 23, 1867, in favor of Fulton and against Woodman, for $35,507. At and before the time of the rendition of this decree there was pending in the Circuit Court of Madison County a suit for about $10,000, brought against Woodman by one Robinson, which had been commenced by attachment, and in which the attachment writ had been levied on the Sanders place on June 29, 1866. The lien of this attachment, therefore, if it should ripen into a judgment, was superior to the title obtained by Fulton under his decree. A few days before Oct. 26,1869, Woodman effected an arrangement with Robinson, whereby he surrendered to him an amount of his, Robinson’s, own paper equal to the amount of Robinson’s claim against him, Woodman, upon which the attachment suit was based; and thereupon Robinson, at the suggestion and request of Woodman, transferred and assigned all interest in said suit to one Cartwright, a friend of Woodman’s, resident in New Orleans, in which city Woodman also resided.
This transaction occurred in the town of Canton. Cartwright was not present.' Robinson did not know him, and had no intimation that he had any interest in the negotiation until it came to be consummated, when, as before stated, Woodman requested .that the transfer might be made to him. A few days after the transfer, to wit, on Oct. 26, 1869, judgment was rendered in favor of Robinson against
The prayer was, that the several conveyances by which the title to the land had been vested in Mrs. Woodman should be vacated and annulled; and that possession be decreed to the complainant, under the deed held by him under his decree.
Cartwright, having been duly summoned by publication, made default, and decree pro eonfesso was taken against him.
Strickland answered, denying all fraud, combination or conspiracy, or any knowledge that Woodman had been engaged in an attempt to defraud the complainant or other creditors, or any knowledge that any debt existed from Woodman to the complainant, and earnestly asserting that, if Woodman entertained or practised any such scheme, it was wholly unknown to and unparticipated in by him. He stated that some time in the autumn of 1869 (he believed, in the month of October), Woodman, his son-in-law, who then lived in the city of New Orleans, came to the home of the respondent in the State of Maine, and, telling him that the land in controversy had passed into the hands of Cartwright, urged him to buy it; that he himself had no acquaintance with Cartwright nor with the land, and knew nothing of Woodman’s pecuniary embarrassments, but that, trusting solely to Woodman’s representations, he yielded to his solicitations, and intrusted him with the sum of about $5,500, with which to make the purchase; that the funds were advanced partly in cash, partly in United States land-warrants and partly1' in a check on a Boston bank, — the amount of each being given; that Woodman left with these means to make the purchase, and that he, the respondent, subsequently received the deed executed by Cartwright; that at no time did he have any correspondence or negotiations with
Mrs. Woodman denied all fraudulent combination or knowledge ; avowed her entire ignorance of the transactions between /Cartwright and her husband; had heard the latter state that
the land had been bought for her father, by money furnished by him for the purpose. Her own deed from her father had been voluntary on his part, and intended as an advancement, except as to the sum of $250, which her father owed to her from her mother’s estate.
There was no proof taken, except the testimony of Robinson and the sheriff of the county, both of whom stated, as indicated above, that they had known nothing of Cartwright, except to make the transfer and deed to him at the instigation and request of Woodman, with whom all their dealings were had. The case having been submitted on the pleadings and this meagre' proof, there was decree of dismissal of the bill, from which the complainant appealed.
It is impossible to read the record without coming to the conclusion that the operations by which the Robinson claim was transferred to Cartwright, and the title of the land successively vested in him and Strickland, were originated and carried through by Woodman, for the express purpose of defeating the complainant’s decree for $35,507. Exactly how this was managed — that is to say, what exactly was Cartwright’s connection with it — cannot be accurately ascertained, because of the death of Woodman and the failure of Cartwright to answer or testify. If Cartwright furnished the money with which the Robinson claim was purchased, and subsequently conveyed the land to Strickland upon receiving back his money from the latter, there was no fraud committed of which Fulton can complain, even though it was understood between Cartwright and Woodman, in advance, that this should be done, and even though Cartwright knew that the effect of the transaction would be to defeat the just debt of the complainant. Robin
Counsel for the complainant correctly asserts that in the attitude of the pleadings it is mainly a question as to where rests the burden of proof. We cannot agree with him in thinking that it is devolved upon the defendants. The complainant has asserted, and the law compelled him to assert, in oi’der to make good his case, that Woodman, with his own means, bought up the Robinson claim, and used it to obtain the land. Having charged this, he proceeds to put to the defendants a series of most searching special interrogatories, calling upon them to disclose, upon their several corporal oaths, their entire information about and connection with the matter, and, if they shall pretend that the land was bought with their means, to state particularly when, how, and to whom they paid the sainé. Their responses are as direct as his interrogatories were categorical. Their answers are as broad as his charge was sweeping. They deny, in the most emphatic and unqualified manner, that any portion of Woodman’s means was in any manner invested in the land. Strickland tells, with great minuteness, when, how and in what manner his own money went into the purchase. He is not able, indeed, to swear of his own knowledge that his money was actually handed to
Much stress is laid'by counsel upon the discrepancy shown to exist between Strickland’s statement that he authorized Woodman to buy the land from Cartwright in thé autumn of 1869, and the fact disclosed by the record that Cartwright liad no title to the land until the sale under the venditioni exponas, in June, 1870. But Cartwright owned the claim and'judgment from and after Oct. 26, 1869; and this was equivalent to ownership of the land. Woodman, therefore, representing the effect of the judgment rather than the judgment itself, might well speak of Cartwright as the owner of the land. We think the variance between the answer and the proof by the deeds in this respect is immaterial. It is insisted, however, that Strickland’s answer is shown to be false, because he states that Woodman came to his house to procure the money in October, 1869; whereas, it being proved.that Woodman was in Canton on the 26th of that month, it was impossible for him to have gone so quickly to Maine. Woodman is not shown to have been in Canton on the 26th of October, but a few days previous thereto, at which time he received from Robinson the transfer to Cartwright. He had, therefore, ample time to have gone to Maine during the month; and,.even though it could be shown that he did not arrive there until some time in November, it would not be sufficient to cause a rejection of Strickland’s answer.
The date in October at which Woodman was in Maine being unknown, it is possible that his visit there may have preceded the transfer by Robinson to Cartwright, and that, in point of fact, it was Strickland’s money, and not Cartwright’s, with which was purchased the paper received by Robinson as the consideration of the transfer. If this be so, it is impossible to account satisfactorily for the use of Cartwright’s name, except upon the
Counsel for the appellant argues that if Woodman’s purposes were fraudulent, Strickland, his principal, will be affected by the fraud, and also that the principal will be held to know all that his agent knew. We reply that Strickland would have had a perfect right to do what he did, if every circumstance relating to the transaction had been laid before him. We mean that if he had known, as he swears that he did not, that his son-in-law was hopelessly embarrassed, and that something could be saved for his family out of the wreck of his estate by buying in a claim which was superior to all others outstanding against him, he would have had a perfect right to make the purchase for that purpose. As before remarked, the whole equity of the complainant’s case rests upon the assertion that the land was bought with Woodman’s money. If this has not been established, he has no ease. There can be no question of good faith or bad faith in Strickland and Mrs.
It is claimed that the acknowledged facts and circumstances establish the purchase of the land by Woodman’s means. We think, on the contrary, that, taking the answers of the defendants to be true, they establish exactly the reverse. Certainly, it will not be denied that we must assume it to be true that Strickland gave $5,500 to Woodman for the purpose of buying the land, because this statement, being made by the former in response to a direct interrogatory from the complainant on the subject, must be accepted as true until the contrary is shown. If given before the transfer of the Robinson claim, the most reasonable inference is that it was invested in the purchase of the paper which constituted the consideration of the transfer. If given after the transfer, it is alike reasonable to presume that it went into a purchase of the land. If we accept neither of these theories, we are left to believe that Woodman, having sufficient means of his own with which to make the purchase, and having actually so invested them, obtained this money
Counsel for the complainant insists that the fraud is established against Cartwright by the pro confesso taken against him, and that this may be used as evidence against his co-defendants, just as the answer of one of several defendants may be used against the others in cases of conspiracy. Counsel forgets that the very foundation of the rule is that participation in the conspiracy must first be established upon the part of the defendant against whom it is proposed to use the answer. In the case at bar Cartwright had no sort of interest in the subject-matter of the litigation, having conveyed his title several years before, and therefore, we may presume, did not put himself to the trouble and expense of answering. It would be monstrous to hold that a man’s title to land can be affected by filing a bill charging him with fraudulent practices in connection with a non-resident who has no interest whatever in the property, and then claim that a pro confesso suffered by such non-resident establishes the conspiracy and makes all the allegations of the bill evidence against the real parties in interest.
As to Strickland, we are of opinion that by the deed from Cartwright he acquired both the title of Woodman and the rights of Robinson under the attachment lien, which latter, being superior to the complainant’s rights under his decree, must prevail over it, unless it can be shown that the means of Woodman, and not of Strickland, were invested in the purchase. To support this assumption, we have charges and arguments only without proof.
As to Mrs. Woodman, it is evident that, though a volunteer, and even if in spite of her denials to the contrary we assume her to have been cognizant of any fraudulent designs on the part of her husband, her title, derived from Strickland, must be as good in her hands as we have seen that .it was in his.
Upon the whole case, we are of opinion that the complainant, having set the case down for hearing, practically without
The decree dismissing the bill is Affirmed.