Howe v. Reed

| Me. | Jul 15, 1835

Parris J.

— Inasmuch as the execution describes the debtor as living in Phipsburg, in the county of Lincoln, we think the officer was fully justified in considering that town as his place of residence at the time of the levy ; and as no proof was offered, showing that he lived within the county of Waldo, but the record showing that he did not, the .officer was not required to notify him to choose an appraiser.

If the testimony of Samuel D. Reed, was originally inadmissible, we do not perceive how it became admissible by reason of the questions put to him by the defendant. Those questions did not relate to the subject matter concerning which he was called to testify. If they did, then, as said by the plaintiff’s counsel, the door would have been opened by the defendant, and the plaintiff might take advantage of it, if he pleased. But the defendant contended, that whatever transactions might have taken place between Samuel D. Reed, and Albert Reed, or any other stranger, they should not be given in evidence to prejudice the defence in this action, unless a knowledge of them was brought home to the defendant. To show that he was not chargeable with notice, the defendant made the inquiry, and the answer was in his favor. Surely that, of itself, could not relieve the plaintiff from any restrictions as to the examination of the witness, which existed previous to making this inquiry by the defendant; much less could it have any influence upon the question of the admissibility of Drinkwater’s deposition.

But we think the testimony of Samuel D. Reed and Drink-water, admissible, notwithstanding the objections raised by the defendant's counsel. The conveyance from Samuel D. Reed to the defendant, which the plaintiff attempted to impeach, was on the 25th of January, 1828. It was proved that Reed and Drummond failed as early as January, 1828. The testimony of Drinkwater related to a pretended sale of a large quantity of personal property, by Samuel D. Reed and Drummond, to Albert Reed, their clerk, about the middle of January, 1828, and the Judge, in his report of the case, says, that Reed’s testimony was to the same points and facts as Drinkwater’s.

To establish the fraudulent character of the conveyance of the real estate now in question, from Samuel D. Reed to the defendant, it was necessary for the plaintiff to prove, that the former conveyed for the purpose of defrauding his creditors, and that the latter received the conveyance with the knowledge of the grantor’s fraudulent intent. Any evidence tending to show that the grantor made other fraudulent conveyances about the same time with the conveyance in question, would be admissible, as tending to shew his intention in making the latter conveyance. When that intention was proved to have been fraudulent, the plaintiff would have established one of the propositions necessary to make out his case. But he must go farther and show the grantee to have been a participator in the fraud ; and this he may do by a course of proof entirely distinct from that by which he fixed fraud upon the grantor. If he fail in the latter proposition, the first, however conclusively established, will avail him nothing. This is the spirit of the decision in Bridge v. Eggleston, relied upon by the defendant’s counsel, and it is precisely the case of Foster v. Hall, 12 Pick. 89. That was a question of fraudulent conveyance of real estate, impeached by the defendant, who, at the trial, proposed to prove that other fraudulent conveyances were made by the plaintiff’s grantor, at or about the same time, with the conveyance in question. It was ruled, that unless some evidence was offered to show that the plaintiff knew of these particular conveyances, or of a general purpose of the grantor to convey away his property to the injury of his creditors, the evidence of other conveyances was not admissible.

But the whole Court held, that this ruling was incorrect; that the limitation under which the defendant was allowed to go into evidence of other fraudulent conveyances made at the same time, or previous to the conveyance to the plaintiff as evidence of the fraudulent intent, and design of the grantor, ought not to have been imposed, but that the defendant ought to have been allowed to show, if he could, by the acts as well as the declarations of the grantor, prior to the conveyance in question, that he had a fraudulent design, without requiring proof of knowledge on the part of the plaintiff, of the particular acts of the grantor, from which such intent, on his part was to be inferred.

Considering that in the case at bar,-the plaintiff had a right to avail himself directly of the testimony of Samuel D. Reed and Drinkwaier, we perceive no reason for setting aside the verdict on account of any irregularity in the circuitous manner by which he came to the enjoyment of that right.