6 Md. 319 | Md. | 1854
Lead Opinion
delivered the opinion of this court.
It is conceded that there is no question before us as to the deed of the 14th of July 1841.
Of all the creditors who offered proof of their claims, none was such prior to the 5th of November 1842, the date of the mortgage, except Walter Crook, Jr.; and if the plea of limitations can avail the defendant, none of them have a standing in court except Sarah Ann Truitt, whose claim can be enforced, if at all, only against the equity of redemption conveyed by the deed of the 16th of February 1844. The first question then to be disposed of relates to the plea of limitations, relied on by Goldsmith.
There are decisions to show that, in cases like the present, this defence has been rejected, but whether correctly or not we are not at liberty to inquire, because the point has been definitively settled in this State. The chancellor, after having discussed the question upon principle as well as authority, referred to the case of The Farmers Bank vs. Mullikin, in this eourt, December term, 1840. We have carefully examined that record and the proceedings on the appeal, and find that it fully sustains the view taken here on behalf of the defendant below. The amended bill and answers distinctly raised the issue of fraud in fact. It was asserted that the deeds-were made by contrivance and conspiracy between the parties, with intent and for the purpose of defrauding the complainants and other creditors of the grantor, and that that unlawful purpose would be accomplished if the deeds were allowed tc
This view of the case disposes of all the claims except those of Truitt and relieves Us from the necessity of passing upon the mortgage of the 5th of November 1842, there being on party in Court in whose behalf it can be assailed.- Moreover,» we agree with the chancellor as' to the effect of the proceedings ih equity, under the act of 1833, ch. 181, as a protection to the defendant against inquiry, in this case, into the question of fraud in obtaining that deed.
The remaining questions on thesé' appeals rélaté to Truitt’s claims and the charge of fraud as to the deed of the 16th of February 1844.- This complainant did not set out her cause of action in the bill of complaint, but subsequently filed two' notes of Osborne under the commission to take proof, one for' $1100, dated the 6th of November 1843,and another for $2800, dated the 21st of October 1844, whieh wasnot due when the bill was filed. We can express' no opinion as to- the last of these claims. The chancellor has neither allowed nor rejected it; but, on the contrary, has reserved it for further directions.
We think that her claim' on the note for $1100 was properly allowed. It was signed by Osborne and endorsed by
The decision of the question of fraud depends on the bill', answer and proofs. We might rather say on the proofs, as we do not attach much consequence to the answer. The evidence on the part of the creditors was assailed as general', contradictory, and unworthy of credit. This affirmation,- we think, was more justly applied to the answer, for the contradictions are striking and irreconcilable, while the' gross carelessness and want of system and precaution in large money transactions, which, according to the answer, appear to have signalized the defendant’s habits of business, are calculated to impair the weight which an answer should have when furnishing no reason to suspect unfairness in the transactions of which it speaks. Concurring with the chancellor in what he has said respecting the case as disclosed by the answer, we proceed to consider the proofs; and, first, the admissibility of the declaration of Osborne, as proved by Spurrier and McGee.-
It is a general and very salutary rule of evidence, that a party will not be permitted by his own declarations to defeat a prior deed; but it is also well settled, that in some cases the declarations and admissions of a grantor will be received where the effect may be to impair the title of persons claiming under him. Dorsey vs. Dorsey, 3 H. & J., 410. Walls vs. Hemsley, 4 H. & J., 243. 1 Greenl. Ev., secs. 189, 190. Another principle is, that all such facts as have not been admitted by the party against whom they are offered, or by some one under whom- he claims, ought to be proved under
This doctrine has been applied in cases like this, in which the object was to vacate deeds at the instance of creditors. Merrill vs. Meachum, 5 Day, 341, cited by the chancellor, is clearly in point, where the declarations of the grantor, “tending to show that the deed was executed for the purpose of securing the land against the attachments of his creditors,” were admitted. But, the correctness of the principle had been questioned, if not denied, in Beach vs. Catlin, 4 Day, 284. The case of Barrett vs. French, 1 Conn., 354, relied on by
In Harshaw vs. Moore, 12 Iredell, 247, where a deed was jmpeached for fraud as against creditors, the declarations of the grantor, immediately before and ip .contemplation of the act, were received to show his object in d.oing it, as strong eviden.ce bearing upon the very point ip issue against the party claiming .under him. See also Ford vs. Elliott, 4 Excheq. Rep., 78.
Cases li^e th.e present .have also occurred in Maryland, ip .which the declarations of the grantor were introduced, to impeach the deeds. Duvall vs. Waters, 1 Bland, 588, Birely vs. Staley, 5 G. & J., 432. Strike vs. McDonald, 2 H. & G., 206. In the latter case one of the grantors was .also examined for that purpose. The Court of Appeals did not pass ppon the .question, although the point was made. However, jhe chancellor in Duvall vs. Waters, appeajrs to have relied on the grantor’s .declarations as evidence of the alleged fraud.
But th.ere is a .class of decisions in England, as well as here, .so analogous that it seems to ps they should be governed by .the same rules of .evidence. We allpde to .cases in bankruptcy, and those .arising under .opr insolvent laws, ip which deeds and transfers of property hav.e been h.eld to b.e good op ba.d, according to t.be intent pf the party ip making them, In both these .classes of cases, the quality of Jh.e act depends upop the same principle. “In questions respecting acts .of bankruptcy .the iptentipn js almost always flip yery point jp issue, and this js p.onjmonly .to be collected from the conversations importing .the existence pf those apprehepsipns which giye a character and quality to the copcomitant a.cti.ops.” 2 Evans Pothier, 247; Appendix, No. 16, sec. 11. 1 Ph. Ev. Hearsay. 3 Gill & Johns., 188. In Bateman vs. Bailey, 5 Term Rep., 512, a declaration of the debtor mpd.e the day after (head, was held admissible; and the established doctrine in England, pow is, that the court will, in each case, consider whether the declaration proposed to be received does or does not copie within a reasonable time of the disputed act. As, if th.e question arise, whether a security were given by way of fraudulent pro-
Several cases have occurred in this court under the insolvent laws. It appears, by the record in Dulaney vs. Hoffman, 7 Gill & Johns., 170, that one of (he insolvents was examined, and his declarations were also offered in evidence, to show that the assignment was fraudulent in view of these laws, and the case was decided on this proof. In Hickley vs. Farmers and Merchants Bank, 5 G. & J., 377, and in Davis vs. Beatty, 9 Gill, 211, the grantors were examined; and in Powles vs. Dilly, 9 Gill, 229, the conversations and declarations of the debtor were received, to show the true character of the acts alleged to be void as against creditors. The court held, that the declarations and conversations, (though occurring some time before,) were part of the res gestee, concomitant with the principal act, and served to explain the motives and circumstances surrounding the assignment. The transfer was. also assailed as void under the statute of Elizabeth.
If, as in the three cases last cited, (he declarations or evidence of the debtor may be invoked as proof of an honest purpose, why may not the party who denies the validity of the act, resort to the same source for evidence of his intent, when the act is done with an illegal purpose? The rule being, that wherever the nature and quality of the act depends on the intent of the parties, cotemporaneous statements may be taken to
The same doctrine has been applied to assignments under the act of 1829, eh. 51. In Crawford vs. Brooke, 4 Gill, 213, the assignor of a chose in action was called by the defendant in an action by the assignees, to show that he had made the assignment for the purpose of qualifying himself as a witness to establish the claim, and to take it without the statute of limitations, by proving a promise on the part of the debtor within three years. His testimony was admitted, because an assignment so made could not be regarded as bona fide within the meaning of the act of 1829, and was liable to be assailed on the ground of the fraudulent character of the transaction, and that the assignor was a competent witness to discover the motives that governed him in making the transfer.
Under the statute of Elizabeth, the insolvent laws, and the act of 1829, ch. 51, transfers of property or dioses in action, are void or not, according to the intent of the parties, in view of their provisions respectively. If the grantor or assignor may be called, or his declarations given in evidence, to impeach his own act, in cases within these acts of Assembly, there is not perceived any reason for excluding them when offered to ascertain his motive in a transaction denounced as fraudulent under the statute. The doctrine, that “in questions of fraud or bona fules an adequate judgment can, in general, only be formed by having a perfect view of the whole transaction, which, of course, includes the conversation which forms a part of it, and, according to the phrase usually applied to this subject, the language which is used on any occasion forms a part of the res gestee,” (2 Ev. Poth., 247,) equally applies to this, as any other case of fraud; and upon the authorities, as well as analogies of the law, vre feel warranted in receiving the declarations of Osborne, made before the execution of this deed, as given in evidence.
It was argued that there is danger in admitting such proof, because of the temptations it holds out to grantors to arm themselves, in advance, with testimony, by making such
Upon-a careful consideration “of all the facts and circumstances-of the case, and drawing such inferences as a jury
It may be that the defendant paid his money as a consideration for this deed; but we cannot believe, from the whole case, that it was a bona fide purchase, and not designed to defraud the creditors of the grantor. If it was actual and bona fide, and Goldsmith cannot explain the transaction in the face of the evidence offered by the creditors, it was his error, if not fault, to have carried on for a number of years large dealings with an illiterate woman, without the guards and precautions generally observed in business with such persons, as well for his own protection as hers. Upon the whole case we think the decree of the chancellor was correct and must be affirmed on both appeals, and that the case should be sent to the circuit court of Baltimore city to carry the same into effect.
Decree affirmed, and cause remanded.
Dissenting Opinion
dissented in part, and delivered the following opinion:
The deed of the 14th of July 1841, is not now in controversy.
I concur with the chancellor in his views respecting the • mortgage deed dated the 5th of November 1842, and the decree passed by Baltimore county court for a sale of the mortgaged property, and therefore unite with my brethren in affirming so much of the chancellor’s decree as dismisses the bill, without prejudice, in regard to the deed of 1841 and the mortgage of 1842. But I do not concur with the majority of this court in the propriety of affirming that portion of the decree which vacates the deed bearing date the 21st of October 1844.