Gamble v. Johnson, 9 Mo. 597

Gamble v. Johnson

9 Mo. 597 | Mo. | 1845

Scott, J.,

delivered the opinion of the Court.

This was a suit in equity commenced in June, 1840, by Gamble, against Johnson and others, for the purpose of setting aside a conveyance as fraudulent against creditors. The bill states that James H. and Madison Y. Johnson, partners in carrying on the business of druggists, were the owners in fee of a lot in St. Louis, which was conveyed to them by D. Shepard, by deed dated 22d April, 1837. That the John-sons being indebted to J. Folger, he, on the 13th October, 1837, sued out an attachment against them, which was levied on the lot in controversy. That on the 10th May, 1838, judgment in that suit was rendered for Folger, on which an execution issued, under which, on the 10th July, 1838, the lot was sold to Gamble for the sum of $1250. That at the time of the commencement of the said suit against the Johnsons, they were utterly insolvent. That whilst in this situation, and with a view to defraud their creditors, on the 25th April, 1837, for the pretended consideration of natural love and affection, and for the sum of $5000, the Johnsons executed, to their mother, Hannah Johnson, a conveyance of the lot in dispute, to be enjoyed by her during her natural life, with remainder in fee to Isabella Johnson, her infant daughter. That Hannah Johnson, at and before the time of the said conveyance, was in poor circumstances, without any separate fortune of her own, and unable to pay the sum set forth as the consideration for the deed. That her husband, Joseph Johnson, was at that time, and long previous had been insolvent. After making J. H. and M. Y. Johnson, the sons, and Joseph Johnson, the husband, Hannah Johnson, the mother, and Isabella L. Johnson, the daughter, parties, the bill prays that the deed of J. H. and M. Y. Johnson, to their mother and sister, may be set aside.

A summons was issued on this bill, which was returned that none of the defendants were found, and thereupon an order of publication was awarded. At the November term, 1840, the court appointed T. B. Hudson guardian ad litem, of Isabella Johnson, the infant, on motion of the complainant; and, the order of publication having been proved, a decree nisi was taken against all the other defendants. Hudson, the guardian of I. Johnson, put in an answer disclaiming all knowledge of the matters contained in the bill, and requiring proof of the same.

Afterwards, at the March term, 1841, the court directed the com*609plainant to file his allegations as to the matter of fraud alledged in the bill in the execution of the deed by J. H. and M. 3?. Johnson to their mother and sister, and touching the privity of the said grantees to the fraud. These allegations being submitted to a jury, they found that the deed was without consideration, but that Hannah and Isabella Johnson were not privy to any fraud committed by the Johnsons in making the deed. On this a decree was rendered in favor of the complainant, and the deed was set aside as fraudulent against him.

Afterwards, at the November term, 1844, Albert Todd, having been appointed guardian ad litem, of Isabella Johnson, the defendants filed a petition against Gamble, the complainant, and Julius D. Johnston, setting forth substantially the proceedings above had against them, and that after the sale of the lot to Gamble, he went into possession thereof, and there, remained, receiving the rents and profits until October, 1839, when he sold and conveyed the said lot to J. D. Johnston, who has ever since been in possession thereof, receiving the rents and profits9 which are worth $500 per annum; and alledging that the foregoing final decree is wrong and unjust, because according to the best of the knowledge, information, and belief of the said Joseph Johnson, Hannah Johnson, and Isabella Johnson, the said J. H. and M. Y. Johnson made the said deed bona fide, and for a valuable consideration, and without any intent on the part of the grantors, to hinder and delay their creditors; and that Hannah Johnson paid a valuable consideration, and was not knowing to, or privy to any fraud on the part of the grantors in making said deed; and praying that thd said Gamble and Johnston may answer their petition; that the suit and proceedings in said cause may be revived against the petitioners, or that the said Gamble and Johnston show good cause to the contrary, and that the decree may be reviewed, reversed, and set aside; that the cause may be heard on the supplemental bill, that J. D. Johnston may be made a party, and that an account of the rents and profits of the lot may be decreed, &c., &c. Revised code 1835, page 516.

Upon this a subpoena was issued, which was served upon Gamble and Johnston. , v

Afterwards, at the November term, 1844, a motion was made by the defendants in the original suit, to set aside the decree entered therein5 and the decree was afterwards set aside.

Afterwards in January, 1845, the defendants put in their joint answer to the original bill, in which the two Johnsons admit their indebtedness at the time of the conveyance to them by Shepard, and at the commencement of the suit by Folger, and at the same time to various persons *610to a considerable amount, but had debts due to them greatly more than sufficient to pay all demands against them, and from their inability to collect their debts they were compelled to make an assignment. J. H. and M. Y. Johnson admit that they executed the deed to their mother for the lot in dispute. All the defendants deny that it was made upon a pretended consideration, and alledge that $3500 was the consideration for the same, which sum Hannah Johnson had advanced and lent to J. H. Johnson, to carry'on the business of the firm, with the express understanding that when said Hannah should select a house and lot in St. Louis, suitable for a residence, the money should be applied in purchasing it. That the house and lot mentioned in the bill having been selected by the said Hannah, it was purchased from Shepard on a credit for part of the purchase money, and a title bond was executed to J. H. and M. Y. Johnson, conditioned to make them a deed when the whole of the purchase money should be paid. The money having been paid, a deed was executed to J. H. and M. Y. Johnson for the lot, who immediately thereafter conveyed it to their mother. That she had separate means of her own, given to her for her own use and benefit; but that Joseph Johnson, her husband, was unable to pay his debts, having failed in business. That the consideration of five thousand dollars mentioned in the deed was inserted without the knowledge or assent of Hannah Johnson, and that the real consideration was $3500. All fraud is denied, and it is maintained that the deed was not made with a view to defraud creditors.

To this answer, a replication was filed, and the court directed the following issues, to-wit:

1. Whether the conveyance pf the lands and tenements mentioned in the complainant’s bill, by J. H. and M. Y. Johnson to Hannah Johnson for life, with remainder in fee to J. L. Johnson, was made or contrived with the intent to hinder, delay, or defraud the creditors-of the said J. II. and M. Y. Johnson.

2. Whether the purchase of the lot in controversy, conveyed by the said J. H. and M. Y. Johnson, io Hannah and Isabella Johnson, was made bona fide, and upon a valuable consideration on the part of the said Hannah.

' Those issues were found for the defendants. The supplemental matter of the bill of review, was taken for confessed against Gamble and Johnston, and a commissioner was appointed to take an account of the rents and profits.

Evidence was given of the great indebtedness of the Johnsons about *611tile time of the execution of the deed, by judgments and otherwise. In September, 1837, J. H. Johnson took the benefit of the insolvent laws.

Lott, a witness, testified that he was a partner of the Johnsons, — he went into business with them in 1836, as a co-partner; he put into the concern nine or ten thousand dollars. That he quitted it in the fore part of April, 1837. That the Johnsons were to take all the property, and to pay all the debts. They executed their notes to him for $11,500, payable in three equal instalments, — a dividend was paid only on one of the notes. They promised him security, but never gave it. He expected the house and lot to be conveyed as security, but it was about that timé conveyed to Hannah Johnson. Hannah Johnson sent for witness, and she said she felt troubled in mind about affairs, and told him not to feel uneasy, that she would pay him, and that the property was made over to her.

M. Brotherton, the sheriff of St. Louis county, testified that in Oct., 1837, he had an attachment against the goods of the Johnsons. There were also attachments against their effects in the hands of constabies, and there was an assignment of the property. In the fall of 1837, all the family of the Johnsons left St. Louis.

T. Polk testified that he was called upon to draw the deed from J. H. and M. Y. Johnson to H. and I. Johnson. That J. H. Johnson told him at the time of drawing the instrument, that he wanted the lot to be conveyed to his mother for life, with remainder to his sister. Said he was prosperous, and was paying for the education of his sister. That the consideration of five thousand dollars was inserted at his, Polk’s, suggestion, as proper to negative any resulting trust. Demands against the Johnsons were placed in his hands for collection, but he never did any thing with them, as he considered that they were desperate.

A letter written by M. Y. Johnson, bearing date 21st July, 1837, and addressed to Dr. Sam’l L. Adams, who was called uncle, New Washington Indiana, written on letter paper, and directed in the usual manner that letters are, was offered in' evidence. This letter stated that in consequence of an apprehended failure in business, the conveyance to their mother and sister had been made ; and sentiments were therein avowed which showed that the writer was utterly destitute of all integrity- This letter was excluded by the court, and the exclusion was excepted to.

Tire defendants read their answer in evidence.

Mrs. Childs, an acquaintance of Mrs. Johnson, testified that about a *612year before the Johnsons left St. Louis, she went with Mrs. Johnson to examine the house and lot in dispute, which was not long before the family went into possession of it. She never saw Mrs. Johnson with but small sums of money. She knew Mrs. Johnson was in search of a house for a residence, and she recommended the one in dispute to her.

W. F. Chase, a witness, testified thst he was consulted by the John-sons in relation to the purchase of the house and lot, and that he was employed to examine the title. That J. M. Johnson said he was going to have the house bought, for his mother with what he owed her. This portion of the witnesses’ testimony was objected to, bat the objection was overruled and exceptions taken. The witness further testified that he did not draw up the contract; that he did not actually examine the title ; that he advised the Johnsons to make the purchase, but not in their own names, as it would be productive of litigation.

The bond of Shepard for a title to the lot, was dated 4th September, 1835.

Dr. Davy, who lived in the family, said that he did not know of Mrs. Johnson’s having loaned money. Never saw any loaned. But when Johnson got into trouble, he went to her and his necessities were relieved. That he knew of Mrs. Johnson’s going out, spending money, and getting articles of great value.

This is as much of the evidence in the cause as is deemed material to be stated, in order to a correct understanding of the case.

The court, at the instance of the complainant, gave the jury the following instructions :

1. That the answer of the defendants is evidence in this case, but liable to be rebutted by the testimony of one witness and circumstances; and the jury are to judge from the whole of the evidence, whether the allegations of the answer are outweighed or rebutted by the circumstances and other testimony in the case.

2. That the jury have the right to examine and compare the statements of the answer of the defendants, and if they find absurdities, contradictions, or inconsistencies, or concealments therein, they have the right to draw inferences unfavorable to the truth of said answer therefrom.

3. That if the jury believe from the evidence that J. H. & M. Y. Johnson conveyed the lot in question to their mother, Hannah Johnson, with remainder to their sister, without a valuable consideration, and that they were then in embarrassed circumstances, and owed debts to a large amount, which they were unable to pay then or since, then such *613conveyance was fraudulent as to the creditors of said J. H. and M. Y. Johnson, although the said Hannah Johnson was ignorant of any fraud in the transaction.

4. That if the said deed from J. H. and M. Y. Johnson to Hannah Johnson were made by them for the purpose of delaying, hindering, or defrauding creditors, then it was void : — unless they also believe from the evidence that a valuable consideration was given by the grantee, Hannah Johnson, therefor, and that she then, or before, had no notice, or knowledge that said Johnsons, her sons, were attempting by that transaction to hinder, or delay, o.r defraud their creditors, or some of them.

5. That if said deed was made by the said J. H. and M. Y. Johnson, for the purpose of hindering, delaying or defrauding any one of their creditors, and is void therefor as to that creditor; it is also void as to all their creditors; 8 Bac. 312, 314: • -

The eomplainant then asked the following instructions :

6. That the failure of the answer of defendants to state from whom or where the alleged private means-of Mrs. Hannah Johnson were- de-r rived to her, is a circumstance tending to impeach the character of her answer as testimony.

If the jury believe from the evidence that the conveyance mentioned in the issue, was made in a manner and for a consideration different from the statements of the answer, they are authorized to consider that as a circumstance impeaching the credibility of the answer.

Which were refused; to which refusal an exception was taken.

The defendants then asked the following instructions :

1. The jury are bound to believe the answer of Hannah Johnson, that she had separate means of her own, and that out of the same she furnished the means for purchasing the lot in question, and that she acquired said lot bona fide, to be true, unless she be proved to have sworn falsely, in her said answer, by two witnesses, or at least one witness, and other additional corroborating evidence, sufficient to satisfy the jury that she has sworn falsely. And her statements are entitled to the support of all the evidence in the case corroborative of her answer.

2. Unless the jury find from the evidence that said Hannah has sworn falsely, or that her said answer is outweighed by legal evidence, under the rule and direction stated in the first instruction, they ought to find that the lot in controversy was conveyed to said Hannah and. Isabella bona fide, and for a valuable consideration.

3. As to the truth or falsity of the answers of James H., Madison Y. and Joseph Johnson, to the charges in the plaintiff’s bill, the jury are *614bound to be governed by the same rule, as contained in the first instruction.

4. A debtor in failing circumstances may lawfully prefer one creditor to another in full.

5. The words and acts of James H., Madison Y., and Joseph Johnson, or either of them, prejudicial to the rights of Hannah and Isabella to this lot, under the conveyance in evidence, cannot affect those rights unless they, Hannah and Isabella, at the time were knowing to and assenting to the same, or that they have since assented thereto.

6. Under the rule contained in the last instruction, what James H. Johnson said to Mr. Polk cannot affect the rights of Hannah and Isabella Johnson to the lot in question.

7. Fraud is a fact not to be presumed, but to be proved, and the jury should not find fraud unless proved. Fraud may be proved, however, as well by circumstantial as positive evidence.

Which, were given; to the giving of which the complainant excepted.

A motion was made to set aside the order appointing a commissioner to take an account of the rents and profits, which was overruled, and á decree was entered dismissing the bill of complainant, Gamble, and against Johnson for the rents and profits ; from which they appealed to this court.

The first point we will notice in this case, is that growing out of the supplemental matter stated in the bill of review, relative to the sale to and occupancy of the disputed premises of J. D. Johnston. The sale, it seems, was made to Johnston in October, 1839, and the suit was commenced by Gamble in June, 1840. The contract between Johnston and Gamble was not in evidence. If, by the contract, Gamble had divested himself of all interest in the subject of the suit, that fact should have been shown to the court in a proper way. If the proper parties are not made to a bill, the defect cannot be supplied by an answer making new parties. If the want of parties to a bill is apparent upon the face of it, the omission may be reached by demurrer; if it do not so appear, then the matter ma.y be brought to the notice of the court by plea. Admit that the defendants might have been restored, by a bill of review, to all of which they were deprived by the original decree. No rents and profits were given to Gamble by that decree. Gamble took possession of the lot in dispute on the 10th July, 1838, immediately after the sheriff’s sale, and continued in possession until he sold to Johnston, in October, 1839. The defendants had an older deed than Gamble ; their remedy at law was clear; and they had no right to come into *615equity to recover their rents and profits. The proper way to view this matter is to drop all consideration of the sale to J. D. Johnston by Gamble. Could the defendant have recovered the rents and profits from Gamble in this suit ? The principle is not perceived on which it could been done. The rule that when a court of equity obtains jurisdiction of a cause for one purpose, it will retain it for all other purposes, and do complete justice between the parties, is not applicable to this case. The supplemental matter would not have been the subject of a cross-bill; Calverly vs. Williams, 1 Ves. Jun. 211; Story’s Equity Pleadings! 317. If the rents and profits could not have been recovered froml Gamble in this suit, on what principle can they be recovered froml Johnston? Lord Redesdale, in his-treatise, p. 90, says, that a supple-! mental bill may likewise be added to a bill of review, if any event has '■ happened which requires it, and particularly if any person, not a party to-the original suit, becomes interested in the subject, he must be made a party to the bill of review by way of supplement; Equity Draughts-man, 445; Story’s Equity, 334. Here nothing has transpired since the original decree varying the condition of the cause. The sale to Johnston was made before the commencement of the original suit. It is no new matter. Even if Johnston could have been made a party in the way adopted, he standing in the shoes of Gamble, there could have been no decree against him for the profits. It seems that if a complainant assigns his interest in the suit 'pendente, lite, if the defendant wishes to have the suit brought to a termination, his proper course is to apply to the court for an order that the assignee proceed and file a supplemental bill, in the nature of a bill of revivor, within such time as shall be prescribed by the court, or that the bill in the original suit be dismissed, of ■ which application notice should be given; Sedgwick vs. Cleveland, 7 Paige, 287.

The testimony of Chase, that before the house and lot were purchased, he heard J. H. Johnson say that he was going to have the house bought for his mother with what lie owed her, which was admitted by the co.urt, is complained of as error. This declaration of Johnson was made before the contract with Shepard for the lot, which took place on the 4th Sept. 1835. The lot was not conveyed by the Johnsons to their mother until April, 1837. It is very clear that when a party’s declarations afford any presumption against himself they may be used as evidence against him. But it is always íór his adversary to sajr whether he will use them or not. When a party-is in possession of land, prima facia,.he. is the owner in fee, and any declarations made by him against bis interest, and repelling this presumption, shewing the nature of his *616possession, and that it is not such as the law presumes, are regarded as res gestae, and may be given in evidence against him and those claiming under him. So when an act is being done, the declarations made at the time, shewing the nature of the act, the design and intention of the doer, are admitted in evidence as part of the res gestae. Such declarations made by one in possession, or in performing an act, are not regarded as hearsay, but as verbal facts illustrating the act which they accompany. *

The declaration, it seems, was made to Chase before Johnson contracted for the lot with Shepard, and not being in possession at the time it can with no propriety be considered as forming a part of the res ges-tae. Such evidence was improperly admitted by the court, to show that the house and lot were purchased with money due to Mrs. Johnson. But it was admissible as evidence on the part of Mrs. Johnson to show that her son was indebted to her. The rule, in such cases, is this :— that where evidence is proposed which is admissible for one purpose, or against one party, it is proper to receive if, with directions to the jury as to the purpose for which it is received,, or against what party it is to have influence.

As to the letter written by M. Y. Johnson, it was evidence against him, and perhaps, owing to the structure of the issues, which are not calculated to simplify this controversy, was proper evidence in the cause, subject to the rule just above stated. In the case of Hildreth vs. Sands, 2, J. C. R. 35, Chancellor Kent advanced the opinion that if a deed is fraudulent on the part of the grantor, it could not stand even if the grantee was innocent of the fraud. In the subsequent case, however, of Anderson & Roberts, 3 J. C. R. 378, he admits that that dictum was properly corrected when that cause was afterwards before the court of errors; 14 J. R. 498. So it has been held that a conveyance, even if for a valuable consideration, is not, under the statute of fraudulent conveyances, valid in point of law irom that circumstance alone. It must also be bona fide. Judge Story .says, cases have been repeatedly decbled, in which persons have given a full and fair price for goods, and where the possession has been actually changed, yet being done for the purpose of defrauding creditors, the transaction has been held fraudulent, and therefore set aside; 1 Equity, § 369. The letter was written after the conveyance to Mrs. Johnson, and should not prejudice her rights. A grantor, by declarations subsequent to his conveyance cannot affect the rights of his grantee; 1 Mass. 165; 12 Mass. 429. The jury applying the facts in the case to the contents of the letter, would determine whether it was written with an intent to communicate *617information, or whether it was a mere romance ; and the circumstances that the relative was in existence, and did reside at the place to which the letter was addressed, would have their influence in this enquhy.

To the instructions which were given at the instance of the complainant, no exceptions were taken. But to the refusal of the court to give the two which were asked and. refused, exceptions were filed. The first of these instructions turns upon the consideration of the defects, omissions and concealments of the answer. These matters were open to the commentary and observations of the court. The court might have made such remarks upon them, as in its discretion were thought proper for the guidance of the jury. If the court omit to do this, counsel are always at' liberty to do it. The refusal of the court to do so, is not an error of law. Indeed it might be questioned how far a court would be warranted in giving that to the jury as a positive instruction, which can only be regarded as a comment on the evidence, intended to aid and assist the jury in their deliberations. Would not such an instruction usurp the province of the jury? Van Ness vs. Packard, 2 P. 158. If the answer omits to deny a fact charged in the bill, that is no admission of the fact. The plaintiff may object to the answer for insufficiency in this respect, as he may for insufficiency as to any other fact charged. But if he takes no exception and the cause goes to a hearing upon the general replication, it is a waiver of the exception, and the plaintiff must prove his case. 5 Mason’s Rep. 270. In asserting this principle, however, it is not intended to be maintained, that a neglect to except to an answer on account of its insufficiency, would exempt it from strictures for its evasiveness, conceal-ments or other defects which weaken its force when given in evidence to the jury. The second of these instructions asserted an undoubted rule in ascertaining the weight of answers in chancery. When the answer is contradicted in any one or more important particulars, by adequate evidence, it is deprived in all other respects of that weight which is allowed to answers by the rules of a court of equity; for being falsified in one thing, no confidence can be placed in it as to others. Roundtree vs. Gordon, 8 Mo. Rep., 2 Tuck. 503.

As to the instruction which were given at the instance of the defendants, their language is certainly open to criticism, and the law of them may bé doubted. Richmond vs. Richmond, 10 Yerger, 343. There was no necessity for telling the jury they were bound to believe the answer of Hannah Johnson, unless it were proved that she swore falsely. If the answer had the weight attributed to it by the instructions, it might have been communicated to the iury in a way, so that *618they would not be driven to the painful alternative of saying a lady swore falsely or the answer is true. This may seem a small matter, but we all know that such things have their weight. That an answer responsive to a bill can only be overturned by two witnesses, or one witness and corroborating circumstances, is a principle coeval with our chancery system. But this principle is subject to many just qualifications, as that the answer itself may contain circumstances giving greater credit to the testimony of a single witness ; so when the answer is contradicted in a material matter by adequate evidence, it is deprived in all other respects of that weight which is allowed answers by the rules of a court of equity. Roundtree vs. Gordon, 8 Mo. Rep. This principle with its many qualifications is entrusted to the learning, skill and experience of chancellors, to be applied by them in adjusting the controversies of suitors. What is the object of an issue in chancery ? A chancellor looking at the pleadings and evidence in a cause, is at a loss to ascertain the truth of a fact' according to those rules of evidence which the law has prescribed for his government. Under such circumstances, he takes the opinion of the jury on the subject, who apply no other rule to ascertain the weight of the evidence than that experience which governs their conduct in life. If the jury in trying the issue, he fettered by the rule that the answer must be contradicted by two witnesses, or one witness and corroborating circumstances, their verdict is no evidence of the real state of the fact involved in the issue ; it is a mere declaration of their.own opinion, shewing how the matter stands under the rule of evidence in chancery, in relation a defendant’s answer. So in fact a chancellor in directing an issue, would be delegating his judicial functions to a jury.- It is clear that an issue may be directed, when there is only a single witness against the answer. De Tastel vs. Bordenave, 4 Con. Eng. Chan. Rep. 244; 2 Bacon 582. A chancellor in directing an issue may determine the effect of an answer in evidence ; it is not evidence for the defendant unless he orders it to be so. The plaintiff may read it as an admission; then it is sa any other admission under oath. The order directing an issue may require one or both of the parties to be examined ; it may direct a fact to be admitted. As the issue is intended for his own information, the chancellor may have it tried in a manner most satisfactory to himself. Barker v. Ray, 3 Eng. Con. Chan. 35. The character of the answer would influence a chancellor in directing an issue. If in his opinion, it is not entitled to the weight usually allowed answers, there is no hardship on the defendant in directing an issue. Chancellors usually look into causes, and see that there is a necessity for an issue *619before It is directed. I would never direct an issue, when I was willing to say that the answer should have the weight of two witnesses, or of one.witness and corroborating circumstances. When in the opinion of the chancellor, the answer is of a character that gives it that degree of weight, I should think it safer to apply the rule myself, than to leave it to inexperienced juries. How is a jury to ascertain what is, and what is not responsive to a bill? We find the judges themselves acknowledging the difficulty in laying down the rule on the subject distinctly and precisely, and running into i(niceties utterly unworthy a court of justice.” 2 Tuck. Com. 502. The weight to be given to an answer must depend on the nature of the answer itself. Although an answer may be responsive to a bill, -yet if it be inconsistent with itself, if the matters thereof are incredible, can it be that two witnesses are necessary to its overthrow? Pierson v. Catlin, 3 Ver. 272. If different witnesses testify to various circumstances impeaching the credit of an answer, would not that be sufficient to overthrow it? These observations show the danger of applying any fixed rule to all answers, and the impropriety of allowing parties, as a matter of course, in every case to try the facts in a chancery cause by a jury, when the answer is to have the weight of two witnesses. The directing of issues, is a matter of discretion in the chancellors, to be done when a difficulty in ascertaining the truth of a fact in a cause arises. It must be confessed that the provision in the statute directing, that the allegations put in issue shall be disposed of by a general or special verdict, before a final decree shall be made, creates some embarrassment in the consideration of this subject. But let it be remembered that that provision was the adjunct of the 1st sec. of the article in which it is found. It did not exist before the enactment of that section, which was repealed at the session succeeding that at which it was enacted. Its retention was perhaps an oversight, and to the same cause we may be indebted for it in the present code. Be that as it may, we do not conceive that the provision of itself, was designed to overturn the entire ancient practice in chancery in relation to the trial of issues. The speedy retracing of our steps, and falling back on the old practice after an abortive effort to change it in 1835, shows the difficulties with which the subject is surrounded, and how wise it is to keep within the ancient landmarks.

The objection to the instructions given at the instance of the defendants, that they assumed that the answer was responsive to the bill can not be enquired into by this court, as the amended original bill is not copied into the record. But it is obvious that an answer, unless it is responsive to a bill, is not evidence when it has been replied to. We *620have seen that its contradictions may destroy its credit. So if a fact is asserted by a party, not of his own knowledge, although it may be responsive, it is not entitled to the weight of an assertion made on the personal knowledge of a party. 1 Dana. 474; 11 Wendall, 343; 9 Cr. 153.

Judge Tucker says there are cases in which the answer of a defendant is, in a court of equity, disarmed of all its force, or yields to the superior weight of even a single witness. Thus if the answer be evasive, it will not prevail where contradicted by one witness. Or if it be not positive and upon the knowledge of the defendant, the evidence of one positive and credible witness will overthrow it. 2 Tuck. Com. 502.

The fifth and sixth instructions, given at the instance of the defendants are also complained of. The object of these instructions, was to prevent the testimony of T. Polk, who drew the deed from the John-sons to their mother, from affecting the rights of Mrs. Johnson. Polk’s testimony related to what transpired at the time of the execution of the deed, to the declarations of the grantor made at that time. Such being the character of the testimony, it was beyond all question part of the res gestae, and admissible; and it was competent to show the intent and inducements with which the deed was executed. Mrs. Johnson taking under that deed, must take it subject to the explanations to be furnished by the acts and declarations of the grantor at the time of its execution. Johnson’s subsequent declarations could not affect his grantee. But his declarations made at the time of the execution of the deed, are a part of the res gesix, and show the motives which influenced his conduct at the time. Bridge v. Eggleton, 14 Mass. Rep. 245. His conduct on the occasion tended to show that the deed was voluntary, and without any consideration, and if it were such, he being at the time insolvent, it was fraudulent, and void against his creditors. It is a matter of indifference whether the grantee were cognizant of the indebtedness or not, or whether she accepted it in good faith. If it were a fact that the deed was without a valuable consideration, or if it were merely for love and affection, the Johnsons being insolvent, it was fraudulent and void against creditors, however innocent and spotless the grantee might have been, for a man must be just, before he is generous. The declarations of Johnson made at the time of the execution of the conveyance, tended to show that it was a voluntary one, and those who take it under that conveyance, must take it subject to the infirmity attached to it by the conduct of the grantor.

The other judges concurring in reversing the decree, it will be reversed and the cause remanded.