Lynde v. McGregor, 95 Mass. 172

95 Mass. 172 | Mass. | 1866

Hoar, J.

We can find in the numerous points taken by the defendants upon this report no just ground of exception to the rulings, refusals to rule, or instructions, of the judge who presided at the trial.

1. The evidence of the attorney, to the defendant’s declarations, was rightly admitted. The defendant was not a client, seeking legal advice or assistance; and there is no evidence that he was employed by Myers to communicate any facts to the attorney.

2. Although the land belonging to the wife was her sole and separate property, in which her husband had no interest except as tenant by the curtesy initiate, and if that interest was one which could not be taken for his debts, the conveyance of it was still a transaction to which the defendant was a party, and in the execution of which the husband joined. If their mutua, intent in making it was shown to be fraudulent, it would show the relation of the parties to each other, and the confidential terms on which they stood. Whether the contemplated fraud was successful in that particular case would not be material. If the intent charged and to be proved were to put all of Board-man’s property out of the reach of hip creditors, and it were shown that in the belief that he had or might have an interest in certain property, however slight, that property was conveyed by him to the defendant, in a manner indicating a fraudulent purpose to hinder and defeat creditors, it would certainly tend to establish the general fraudulent purpose.

3. There was evidence that the mortgage of the wife’s land was made for $6500, while but $2000 had been in fact advanced. The form of the transaction enabled the defendant to claim more than was due upon it. That it was made for that purpose would seem to be shown by the fact that subsequently the full amount of $6500 was claimed by him as due. The jury might well infer from making the mortgage in a form which would admit a fraudulent claim, no honest reason being shown for making it in that form, and the fraudulent claim being afterward made, that it was originally intended for that purpose.

4. The objection that the plaintiffs were wrongly allowed, as evidence to show that the mortgage of May 18th was fraudulent, to put in evidence subsequent mortgages and conveyances from Boardrnan to the defendant, is not well founded. It has indeed been held in several adjudged cases that, upon the trial of the question whether a particular conveyance was made to defraud creditors, it is not competent to show the acts or declarations of the grantor, after the conveyance, to impair or affect the title of the grantee; and therefore that evidence of subsequent conveyances, alleged to be fraudulent, is not admissible. Bridge v. Eggleston, 14 Mass. 244. Foster v. Hall, 12 Pick. 89. Aldrich v. Earle, 13 Gray, 578. Taylor v. Robinson, 2 Allen, 562. But in each of these cases the subsequent conveyance was by the alleged fraudulent grantor to a third person, and not to the defendant whose title was in issue in the suit. Here the successive conveyances were to the same grantee; and there is no question whether the grantor should be allowed to affect the title which he had made, without the participation of the grantee. The acts and declarations of the defendant are of course competent evidence against him, if they have any tendency to prove the fact in controversy. The question is then reduced to this, whether evidence of a subsequent fraudulent act can ever be evidence of a prior fraudulent intent ? And we have no doubt that it may be. It will depend of course upon the connection of the facts; whether upon the whole evidence they appear to be parts of one transaction. The position taken by the plaintiffs is, that Boardman and the defendant conspired together to put the whole of Boardman’s property out of the reach of his creditors; that the several conveyances, made at short intervals, were all intended as parts of one act, in execution of the conspiracy and general fraudulent intent. It seemed to the judge at the trial that there was evidence to support this hypothesis ; and the whole court concur with him in that opinion. If it had appeared that the transaction of the 18th of May was wholly distinct and independent of those which succeeded it, the case would have been different. But there is no positive rule of law which requires that all parts of a negotiation should take place, or that all instruments of conveyance should be executed, on the same day, in order to make them belong to the same transaction. And some of us are inclined to think that the rule was applied too favorably for the defendant, and that the mortgage of the 12th of May was near enough in time, and sufficiently connected in design, to have authorized the jury to infer its character from the acts of the defendant which followed it. Allison Matthieu, 3 Johns. 233.

5. A conveyance fraudulent as to creditors at common law ion be set aside by the assignees in insolvency, and the value thereof recovered from the fraudulent grantee, if made within six months prior to the commencement of the insolvent proceedings. It necessarily comes within the provisions of Gen. Sts, c. 118, § 91, when the grantee participates in the fraud. As all the conveyances in question were made within that time, the lefusal to give the instructions asked on this point was not prejudicial to the defendant. Clark v. Jones, 5 Allen, 379.

6. The plaintiffs having put in evidence some of the answers of the defendant to interrogatories put to him upon his examination under the proceedings in insolvency, he had the right to read to the jury all his answers in the same examination which pertained to the same subject; and he was permitted to do so. He had not the right to put the whole examination in evidence, because that would be giving his own declarations in evidence in his own favor, upon matters upon which they had not been used against him. But the defendant objects that some answers were excluded which by this rule ought to have been admitted. In looking at the particular questions .and answers referred to in support of this objection, it appears that all but one, the 52d, refer to the mortgage upon which the issue was found for the defendant; and that the answer to the 52d had been in substance given in answers to the 46th, 47th and 48th interrogatories which were admitted. The objection is therefore not material.

7. When a conveyance fraudulent as to creditors has been made, if the contract be afterward rescinded, and a new one made which is free from fraud, or in the case of a conveyance which creditors may set aside because it is voluntary and without consideration, if a consideration is afterward paid, this may purge the fraud, and give validity to the transaction. But no authority has been found, and we cannot believe that any exists, for the proposition, that where a contract expressly and intentionally fraudulent has been made, it is possible to give it a partial validity by any subsequent payment or advances in part, without rescinding the whole. If any part of the original purpose is fraudulent, the whole may be avoided, though made upon sufficient consideration. And in like manner if any part of the fraudulent purpose remains, it vitiates the whole. Thomas v. Goodwin, 12 Mass. 140. Oriental Bank v. Haskins, 3 Met. 332. Crowninshield v. Kittridge, 7 Met. 520. Kimball v. Thompson, 4 Cush. 441. Denny v. Dana, 2 Cush. 160.

Judgment for the plaintiffs upon the verdict.