61 Ala. 270 | Ala. | 1878
A reexamination of a witness, after the evidence has been published, a hearing had, and final
The rule in courts of equity, disallowing except under very special circumstances, the examination of witnesses after the publication of the evidence, even before hearing and decree, is founded on the soundest policy and highest wisdom, and it is feared that it is not enforced as rigorously as the ends of truth and justice require. It is not only a safeguard against fabricated evidence, but it quickens and keeps alive the diligence of suitors. “ It is of great importance in the administration of justice, and ought to be constantly inculcated upon suitors, that they must bestow diligence in the prosecution and defense of their suits, and that every step in the progress of the cause, is to be taken orderly and in due season, and that though the courts are indulgent to mistakes and unavoidable accidents, yet they can not be so to the mere negligence or wilful defaults of parties, which only tend to hinder, fatigue and oppress each other.” — Hamersly v. Lambert, 2 Johns. Ch. 432.
The chancellor could properly and ought to have refused the rehearing, and the order for the reexamination of Moore. The alteration and correction of his testimony on a point which had been “ critically discussed in court, and the bearing and effect of every part of it understood and judicially settled,” was unauthorized according to the authorities to which we have referred. It opened “ a door to fraud and. perjury, by holding out or encouraging inducements to supply insufficient evidence, or to withdraw or explain away that which has been oppressive.” In this instance it may be there was not, and we would not be understood as intimating there has been, either fraud by the party reexamining,
The order having been made and the reexamination had, it is not matter of surprise, that the party obtaining the order, should have endeavored to convince the witness of his error, and to obtain from him testimony, which if it did not contradict, would neutralize or weaken the force of that he had already given, the bearing and effect of which the court had declared. That witnesses maybe saved from such influences, is one of the reasons on which the rules disallowing a reexamination is founded. We are satisfied the second deposition of Moore was properly suppressed; and the chancellor could have gone further and rescinded the order for his examination.
Where creditors of a vendor, or of a grantor, assail a sale or conveyance he has made, as intended to hinder, delay and defraud them, the fact that at the time of sale, suits were pending against him, or that he was apprehensive suits would be commenced, and his general pecuniary condition, are facts of importance, they are permitted to prove. The value of the evidence depends upon its connection with other facts, and of the evidence of good faith, and fairness in the transaction, which may be given in support of it. The certified record from the court of probate, showing the liability of the grantor, as the surety of Walker, and the proceedings for the settlement of Walker’s administration, pending when the conveyance was made, was admissible evidence. If these proceedings ripened into decrees against Walker, such decrees were causes of action against the grantor, on which suits at law could have been immediately commenced. Or on a return of execution against Walker, no property found in whole or in part, execution could have been issued against the grantor. The insolvency of Walker, would have increased the grantor’s apprehension of suit or proceedings against himself, and of the fact there could be no better evidence, than judgments rendered against him, and the return of executions issuing thereon.
3. It is very clearly shown, we may say the fact is not questioned, that the conveyance now impeached, was of all the visible property of the grantor, subject to execution, and that when it was made, and from a date anterior, the close of the war, and the emancipation of slaves, he was insolvent. It is also shown clearly, we think, that his son, the grantee, was apprised of his insolvency. Their relationship, the gen
Without noticing the evidence in detail, we concur with the chancellor, that it is insufficient to establish the fact of payment. It may be the vendee had accumulated some money, but his evidence of the source from which he obtained the amount paid the vendor in the presence of witnesses, is too vague and indefinite to support a transaction attended with the indicia of fraud, which attend the conveyance to him. Where the money had been kept, if he had it on hand for any length of time prior to the purchase, could have been easily proved. Or, if not on hand, and it was obtained for
Another fact is unexplained, which casts suspicion on the transaction, and which could be x’emoved only by clear evidence of fairness, good faith and an actual consideration, really paid, and justly disposed of by the grantor. In a short time, the grantee without valuable consideration, so far as is shown by evidence, conveys to his brothers, and brother-in-law, parts of the lands; himself, brother and sistex, being the only children of the grantor. A division of the lands, all his estate of any value among his children, if he had been unembarrassed, and free to convey without á valuable consideration, is the disposition, the grantor would probably have made, at his advanced age, and in his state of health. That is the result, following the conveyance interposed to defeat the claims of his creditors, and how, and why it followed, is unexplained.
The relationship of. the grantor and grantee, the known insolvency of the grantox’, the pexxdency or apprehension of suits, on pecuniary debts or liabilities then existing, are bxxt circumstances, and of themselves, may not justify the conclusion that the sale and conveyance is fraudulent. Whatever of unfavorable presumption may be drawn from them, is weakened and generally removed by the 'evidence of a full consideration actually paid. — Montgomery v. Kirksey, 26 Ala. 172. But as in the first instance, before the conveyaxxce can be impeached, the creditor must prove the existence of his debt; when it was contracted, or that there were then cx’editors who could be hindered or delayed by it, the grantee to support the bonafides of the conveyance, when the indebtedness
4. There is however an error in the decree of the chancellor which must be here corrected. After the conveyance to Whitmell F. Harrell, and before the filing of the bill, it is averred in the bill, he had conveyed parts of the land to his brother-in-law, and to other persons. The parts of the lands so conveyed are not designated, nor are these grantees made parties. They were necessary parties, if it was intended to subject the lands conveyed to them, and in their absence, it was erroneous to render a decree, under which the lands conveyed to them could be sold. The lands conveyed by Whitmell H. to his wife and children, are particularly described in the amended bill, and they are made parties de