4 App. D.C. 213 | D.C. Cir. | 1894
Lead Opinion
delivered the opinion of the Court:
The gravamen of the case is the alleged fraud and collusion of the defendants, in respect to the purchase and conveyance of the property in question. To overcome the effect of the deeds — the one from Gist to McGowan and the other from McGowan to Emily E. Parish — the onus of proof is, of course, upon the plaintiffs. Fraud is not to be presumed, nor can it be established except upon clear proof. It may, however, be established as well by circumstantial as by direct evidence. But if the form and design of the transaction assailed may be traced to an honest and legitimate source equally as to a corrupt and fraudulent one, the former should in all cases be preferred. Suspicious circumstances are not the equivalents of proof; and unless all the facts and circumstances of the case, when taken together, are strong enough to generate a clear rational conviction of the existence of the fraud charged, that conclusion ought not to be adopted which will destroy a prima facie good title to property, and blacken the characters of the parties concerned.
In this case, in the absence, as may be supposed, of other available proof, the plaintiffs ventured the experiment of calling the principal defendant, Emily E. Parish, as their witness. She was subjected to a most protracted and scrutinizing examination, running into great detail and much irrelevant matter. And while there are some apparent confusion and want of consistency, and, possibly, of full understanding, in some parts of her testimony, yet, when taken as a whole, and fairly construed, there is nothing in it, in my opinion, that justifies the conclusion that she was relating
According to the testimony of this witness, she earned the money with which the property was purchased, at the price of $6,500, under a contract with her father, made in 1875, when she was then but eighteen years of age. She was the only daughter, and her mother was an invalid, requiring attention herself, and was wholly unable to attend to the household affairs of the family. The daughter, as she testifies, had formed the plan of applying for an office in one of the Departments of the Government, and so informed her father, and requested his assistance. She was anxious to make an independent income for herself. This her father opposed, feeling that he could not dispense with her services in the management of his household, and in the care of his invalid wife. He proposed to her, she says, that if she would give up her plan of seeking an office, and remain in charge of his house, and take care of her mother, he would give or pay her $50 per month, and supply her with board and clothes, and this proposition was accepted by her; and that she remained continuously in the performance of that service until after she had attained the age of 35 years. There is no question in the case but that she did perform the services faithfully. This is shown by other testimony than her own. She swears, that on this claim for wages, running since 1875, her father paid her in 1886, out of money received under an appropriation by Congress, the sum of $5,000, which she placed in one of the banks of this city in her own name, where it remained for more than a year, and until she drew it out to pay to McGowan the sum of $4,500 on the property purchased for her; and that the further sum of $2,000 was paid by her father, out of another appropriation for his benefit, in 1889, to McGowan for her, and upon which last payment she obtained the deed from McGowan and wife.
The important, indeed, the controlling question in this
It has been urged on behalf of the plaintiffs, as one of the grounds for imputing fraud, that at the time of the alleged contract made by the father for compensation to the daughter for services to be rendered, the latter was a minor, only eighteen years of age, and that the father was therefore legally entitled to her services, to say nothing of the filial duty of the child to serve her parents. But while this general principle is unquestionable, there is another principle equally well settled, and that is, that a parent may voluntarily relinquish the right to his child’s earnings, and may permit the child to earn for itself, receive and appropriate its earnings at pleasure. He is under no legal obligation, though he be insolvent, to claim such earnings for the benefit of his creditors. Wilson v. McMillan, 62 Ga. 16 ; Atwood v. Holcomb, 39 Conn. 270 ; Wambold v. Vick, 50 Wis. 456. A father may emancipate his child, son or daughter, for the whole remaining period of minority, or for a shorter term, and this may be effected by instrument in writing, verbal agreement, or by implication from his conduct; and such emancipation is valid against the creditors of the parent. It is laid down as text law, by a recent writer of high repute, that “ the minor who is released from his father’s service stands, as to his contracts for labor with strangers or with him, upon the same footing as if he had arrived at full age; and such being the case, the father may himself contract to employ and pay the child for his services, and be bound in consequence like any stranger to fulfill his agreement.” Schouler, Dom. Rel., Sec. 268, citing cases of Steel v. Steel, 12 Penn. St. 64 ; Hall v. Hall, 44 N. H. 293 ; Wright v. Dean, 79 Ind. 407.
It has been strongly urged, as an evidence of fraud, that the father, Joseph W. Parish, has been in the possession of the property ever since it was purchased by McGowan, and that he has directed improvements thereon as if he were owner. This would, doubtless, be a fact of great weight, in the absence of explanation. But it has been explained, and there is nothing unreasonable in the fact that the parents should live in the house with the daughter, and the father direct repairs thereof, when without other home.
The fact that the deed from McGowan to Miss Parish was not placed upon record is regarded as evidence of fraud. All secret transactions naturally give rise to suspicion. But in this case, the grantee swears that she was not aware of the necessity or importance of having the deed recorded, and that no one advised her upon the subject; that she bundled up the deed and the contract and sent them to the office of McGowan to be placed in the safe, for safe preservation, where they remained until called for to be used in this suit. It is not pretended that the plaintiffs have been defrauded or prejudiced by the failure or delay in having the deed
Another circumstance has been strongly emphasized as furnishing ground for the presumption of fraud, and that is the failure of Joseph W. Parish to become a witness for his daughter. That such fact, under the circumstances of this case, furnishes ground for suspicion and adverse comment, is unquestionably true. What motive may have influenced the father thus to stand aloof and decline to add his testimony in support of his daughter’s claim, it is difficult to conjecture. He had placed on file his answer to the original bill, under oath, wherein he denied all fraud and collusion charged, but that, under the rule of court, was not evidence for the defendants. Whether it was that he shrank from a probing into and a disclosure of his private affairs, or whether he was apprehensive that he would not be able to stand the ordeal of a rigid and searching cross-examination, are questions that are difficult to answer. We have, however, the testimony of the daughter and that of McGowan that cannot, without the risk of doing injustice, be discarded; and that being so, it would seem to be both inconsistent and unjust to impeach and annul the title of the daughter upon a presumption founded upon the unexplained conduct of the father. His failure to testify cannot be allowed the effect of impeaching and discrediting the testimony of other witnesses.
Upon careful examination of all the facts of the case, and after the best consideration that I have been able to give to the evidence produced, I am brought to the conclusion that the plaintiffs have failed in their proof to sustain, with reasonable certainty, the allegations upon which their right to
Decree affirmed.
Concurrence Opinion
concurring:
I concur in the conclusion announced by the Chief Justice in his opinion in the above entitled cause, on the ground that the assumed fraudulent character of the contract in the case between Joseph W. Parish and his daughter, Emily E. Parish, is not sustained by the testimony. That contract is unusual and extraordinary. There is just cause to suspect that no such contract was ever made; and there is just cause to suspect that, if it was actually made, it was designed for the purpose of evading the claims of the creditors of Joseph W. Parish. But suspicion is not proof; and the testimony fails to disprove the existence of the contract, or to show its fraudulent character. On the contrary, the contract is proved by the witness called by the complainants themselves, a hostile witness, it is true, but fully accredited by them; and they fail to show that, while the contract was unusual and extraordinary, it was unreasonable or improper. On the validity of this contract the case of the defendants depends. On its overthrow depends the case of the complainants. On these it was incumbent to produce testimony to discredit it, if they could. This they have not done. Having themselves proved the contract by their own witness, whom by calling they have asserted to be a credible and trustworthy witness, and having adduced no other testimony on the subject, they seem to have overthrown their own case. It is not apparent to us that the contract, while an exceedingly suspicious one, should of itself be regarded as fraudulent.
Dissenting Opinion
dissenting:
I regret my inability to concur in the disposition made of this appeal. I cannot escape the conclusion that the decree should be reversed instead of affirmed, and deem it proper to give some of the reasons which have influenced my judgment.
Joseph W. Parish had no visible property subject to execution for debt. His only means seem to have consisted of claims against the Government, dependent upon favorable action by Congress. He was certainly in debt and insolvent early in 1876, and I think it fairly presumable that he was so at an earlier period. He had an invalid wife, two sons whose ages are not given, and a daughter, the defendant Emily E. Parish, who was born in September, 1857. What business the said Parish was engaged in, or by what means he maintained his family from 1875 to 1886 nowhere appears in the record. In May, 1886, under an appropriation made by Congress, he received from the Treasury something over $56,000; in May, 1889, he received about $18,500. It is evident that large amounts of these payments went to associates and attorneys. How much Parish retained is unknown, as two of his attorneys, on objection made by defendant, declined to answer concerning the transactions and he himself did not appear as a witness. Prior to May, 1886, several judgments had been recovered against him in the courts of the District, upon which executions had been returned unsatisfied. Some"of these judgment creditors, suspecting that the house and lot in controversy had been purchased with the money of Parish and for his benefit, filed the original bill in this cause on May 12, 1892, to subject it to their demands. The lot with the house upon it was conveyed by Gist and wife to Jonas H. McGowan, October 25,1887, and stood in his name
It will be remembered that for more than ten years this contract remained in force without an accounting under it. Not one dollar had ever been demanded or received upon it.
Under all the circumstances of the case, I am of the opinion, that in claiming to have received the money in part discharge of the debt attempted to be created by this contract, she is charged with the burden of proving the fairness of the transaction by which she alone of all the creditors obtained payment from the insolvent. In other words, having received the money in the payment of a debt, it became her duty to prove, with reasonable satisfaction, that
Joseph W. Parish answered the original bill under oath, though the same had been expressly waived, and made the following statement concerning the purchase of the property : “ The purchase money and consideration for said real estate was the private means of the said Emily E. Parish, said money being by her earned as the result of her own labor after she became of age, and your respondent had no interest therein whatever and no claim therefor.”
In her answer to the amended bill, Emily E. Parish said: “She did receive a certain sum of money from her father, being the fund or part of the fund with which said property was purchased, but she says said money was due her by virtue of a certain contract or agreement set out in the answer of said J. W. Parish.” It will be observed that the nature, terms and conditions of this contract wrere not stated. These were only elicited by the examination of the said Emily E. Parish. She said that in September, 1875, her father promised to support her and pay her $50 per month for remaining with him and caring for her mother, who was afflicted with some heart trouble. She was then eighteen years of age, and was of the impression, and so remained, it would appear, until her examination, that she was then “of age,” in the legal sense of the word. Subsequently she was recalled on her own behalf, and gave the origin of this contract as follows: “ I wanted to obtain employment in one of the departments, and wrote an application and gave it to my father. Through his influence I thought he could secure me a place; and he told me that he would rather I would not do anything of the kind, but
In my opinion, the foundation for this contract does not strengthen defendant's case. Here was a daughter, lacking three years of the attainment of her majority, whose natural duty it was, especially under the circumstances, to remain with her family. Yet she proposed giving up the care of her mother, and the management of the household for employment in a Government office, and was only induced to remain by the promise of no inconsiderable pecuniary reward. The contract was apparently made as between strangers; no sentiment seems to have entered into it. Notwithstanding this, no arrangement seems to have been made to secure the payment for the services either by month or year. She performed her part of the contract faithfully for more than ten years before one dollar was ever paid her. No accounting was ever had, and no attempt seems ever to have been made to collect even a portion of her dues during this period. The business part of the transaction was confined exclusively to the making of the-contract. In June, 1886, her father turned over to her $5,000 out of funds collected from the Government. At this time, counting the three years of her minority, the salary due her amounted to about $6,400. Excluding these years, it would amount to about $4,600. I concur, without question, in the proposition that á father, though insolvent, may emancipate his minor child, and that his creditors would have no right to subject her earnings to the payment of their demands. Any other doctrine would savor of human slavery. But I do not agree that he can first emancipate a child from the performance of a proper and necessary service to himself, and then immediately contract with the same child for the same service at an arbitrary price, and
There is no proof with respect to the reasonableness of this contract. Viewed as a contract for personal services between party and party, the compensation would seem to be very liberal, still it is not so great as to shock the conscience at a glance. The possibility of such contracts with children, either before or after majority, is enough to suggest that they cannot be left to the will of the makers thereof, but must be matters of inquiry and revision by courts of equity, in the interest of justice and fair dealing.
I pass now to the consideration of some other features of the case. Four thousand five hundred dollars of the money so disposed of was invested in the house and lot. The vendors, Gist and wife, conveyed the property to Jonas H. McGowan, October 25, 1887, for $4,500 in cash furnished by defendant, and $2,000 in notes secured by trust deed thereon. In her statement of this purchase, Miss Parish testified that McGowan purchased the property before she purchased it of him, and that he did not purchase it for her. She further said that he bought on condition that she might have the property if she liked it; if not, he would keep it. That she looked at the house, liked it, and then bought it of McGowan, giving him $4,500 in cash and notes for $2,000. Ilis contract with her for sale at this price bears date November 18, 1887. She further stated that McGowan bought for himself; that she had no conversation with him before he did so; and explained that when she had said that he bought upon condition that she might have the property if she liked it, she had used the wrong word.
McGowan, however, testified, that Miss Parish came to him, told him she had $4,500, and wanted to buy a house at from $6,000 to $7,000, if she could arrange for the difference. He said to her: “ Find some place that you think will be satisfactory to you, then see me again, and I will do
I can readily appreciate the motive for keeping the transaction concealed from these troublesome creditors. It is consistent with that which I conceive tó be the purpose of the whole transaction. But I am unable to perceive why her inability to pay all the purchase money in cash would be any reason for using the name of McGowan instead of her own, for it does not appear that the personal liability of McGowan was any part of the consideration to the vendors, or that they were not perfectly content with their lien after receiving $4,500 in cash. In this connection it may be remarked, too, that neither the contract with McGowan, nor his deed to her when she completed the payment, was recorded. The entire Parish family moved into the house, lout there was nothing to indicate that they were not tenants of McGowan, instead of owners of the property. The failure to record the deed may have been through carelessness as claimed, but the omission to do so was very much in the line of the wish to “ avoid scrapes ” with creditors.
Shortly after the purchase of the house it was repaired, at the request and upon the order of Parish, by the consent and in the name of McGowan. The cost of repairs seems to have been from $600 to $700, and was paid by Parish himself. Miss Parish had nothing to do with it, and could not tell the cost. The father also kept the taxes paid up. How much he thus paid she could not tell, for it appears that
Altogether, defendant received from her father $7,000 in cash, about $600 or $700 in repairs upon the house, and the taxes for a number of years. By leasing the house to him for a residence at a liberal sum, she could, with her continuing salary, make- a safe depository for other large collections which he might make at subsequent periods.
In arriving at my conclusion, I do not find it necessary to say that this extraordinary contract was not made in September, 1875, as alleged, or that it was concocted as late as 1886 or 1887, when the purchase of the house was contemplated. What I do maintain is — granting it was actually made as claimed — that it was not conceived in good faith, but was devised by an insolvent debtor, in anticipation of the receipt of the money from the Government, as the best means through which it could be kept from the grasp of his numerous creditors.
