20 Ala. 200 | Ala. | 1852
This bill is filed by a judgment creditor against bis debtor and one who, as be charges, fraudulently bolds property, on a secret trust in favor of tbe debtor.
Tbis view of tbe pleadings relieves us from inquiring into tbe character of tbe transaction out of which originated tbe :.deed of 17th August, 1840; as well as from pronouncing on tbe validity or invalidity of that instrument.
The only bearing it’ could have in a controversy between the present parties, if it existed at all, would be, by connecting May with it, to use it as a fact from which, with others, fraud in the sale under the judgments might be presumed ; but its force, in this respect, is entirely broken, by the positive responsive denial of its existence in the answer of May, and the total absence of all proof to establish it.
But it is insisted that, the connection between Grizzle and May, in the perpetration of the several fraudulent practices charged in the bill, is so intimate, that the admissions in the answer of Grizzle should be received as evidence against May. The well established rule in chancery practice is, that the answer of one defendant cannot be read as evidence against his co-defendant. Gresley’s Equity Ev. 24. The exceptions are, where there is an identity of interest, as where all the defendants are partners in the same transaction; and where the defendant whose answer is read, and the defendant sought to be charged, are privies in estate. Gresley Eq. Ev. 25 and 322. There may be other exceptions, but they must be all founded on the same rule which governs those above
Prom what has been said, it is manifest that the decree of the chanceUpr must be reversed; and as there is nothing in the record to justify us in concluding that a different result would spring 'from remanding the cause, the bill must be here dismissed, without prejudice, the defendant in error paying the costs of this court, and of the Court of Chancery.