43 Barb. 448 | N.Y. Sup. Ct. | 1864
The most important questions in this case arise upon the motion made by the counsel for the defendants, at the close of the evidence, to nonsuit the plaintiff.
First. The first point to be considered in this connection is whether there was sufficient evidence of fraud and of a fraudulent intent on the part of John P. Cordell, in the whole transaction, to authorize the court to submit the case to the jury and which would justify the jury, in connection with other evidence, in rendering a verdict in favor of the plaintiff.
(1.) I think it may be said with propriety that the transaction presented by the evidence in this case has some strange characteristics. The defendant John P. Cordell conveys his real estate in Albany to Elizabeth Cordell, the wife of his brother. About two months after this conveyance, Elizabeth conveys the same premises to one Joseph Hilton a third party. On the very same day Joseph Hilton conveys another piece of real estate situated in Watervliet to Angeline Cordell the wife of John P. Cordell, and one of the defendants in this suit. The only consideration of this last transfer which appears to have been made in connection with the conveyance to Hilton, was the property deeded to Hilton by Elizabeth Cordell. The defendant John P. Cordell was, at the time, apparently in embarrassed circumstances, and was indebted to the plaintiff for the amount of a note for which a judgment was subsequently obtained, to enforce the collection of which this action was brought. The two pieces of real estate thus transferred appear to have been considered of about equal value, and the one was regarded as an equivalent for the other, in the transaction between the parties. With no explanation whatever to show the reason, why, or how and in what manner, Joseph Hilton became connected with this business, and why he should have executed a deed to the wife of John P. Cordell, of a piece of real estate for which he received no consideration from her, and only received a deed of another piece of property from Elizabeth Cordell,
(2.) I think, so far as the evidence relates to the payment of a consideration for the conveyances made to Elizabeth and to Angeline Cordell, it is by no means satisfactory. It is true that the plaintiff must establish a failure of consideration ; but he may do so as well by circumstances as by positive evidence. It is said that John P. Cordell’s testimony shows a valid and full consideration for the conveyance executed by him to Elizabeth Cordell, and if there was no fraud in this the action must fail. There are, I think, some circumstances which may be considered as detracting from his credibility, and impairing the force and strength of his evidence. In'the first part of his direct examination, he swears that he received #600, at different times. He has forgotten how
He also swears that one Jordan was present when the $600 was paid, and a little girl when the deed was delivered. It may be observed, in reference to this testimony, that it was not very specific as to date, time, or amounts. It gave no details as to these payments, if made as first stated at different times, and it was somewhat inconsistent and contradictory. The facts occurring upon such an occasion would naturally make an impression which would not very soon be effaced from the memory, and it is somewhat singular that the evidence should not have been clearer, and more accurate and specific.
It will also be noticed, that he calls no one to corroborate him upon the material points in controversy to which his testimony related. Jordan, who saw the money paid, he states, was present in court and the girl, Elizabeth Cordell, and his own wife were within his reach, and could doubtless have been obtained if desired; the plaintiff endeavored to procure the attendance of Elizabeth, but was unable to find her. As to the deed to Angeline Cordell, although she swears in her answer that she paid a valuable consideration out of her separate property, for the farm in Watervliet, yet there was no evidence, whatever, to show that any consideration was paid by her, or that she had any property of her own. Why was she not produced and sworn as a witness? If it was true, as set forth in her answer, she could have stated every thing that she knew in regard to it, and might have' been able to make a perfect explanation of the whole transaction. The absence of evidence which it is clearly in the power of the party to produce, is often as effective in diposing of a case as testimony of a positive character. The
. (3.) Although the defendant John P. Cordell swears that there was no intention to defraud the plaintiff, or to prevent a recovery of any claim which the. plaintiff might have against him, I do not consider that his statement is to be regarded as entirely conclusive or satisfactory.
As was justly remarked by Sutherland, J. in Babcock v. Eckler, (24 N. Y. Rep. 623,) “Intent or intention, is an emotion of the mind, and can usually be shown only by acts and declarations; and as acts speak louder than words, if a party does an act which defrauds another, his declaring that he did not by the act intend to defraud is weighed down by the evidence of his own act.” Such testimony can scarcely be regarded as any thing; more than an expression of an opinion of the.party. charged with the fraud, as to the character of the transaction and his own estimate of it. While the party alleging fraud is bound, to prove his allegation by sufficient evidence, (Hildreth v. Sands, 2 John. Ch. 43, and 14 John. 498,) it is not expected that it should be established by direct proof, and resort may be had to circumstantial and presumptive evidence. (Waterbury v. Sturtevant, 18 Wend. 353. Jackson v. King, 4 Cowen, 220.) The intent to defraud may be inferrible from circumstances. (24 N. Y. Rep. 623.) Sometimes a combination of circumstances will characterize a transaction, so plainly and so. clearly as to stamp upon it unerring and indelible marks of fraud, which can not be mistaken, and the transaction itself will present phases so:remarkable and peculiar, that no-fair minded person will hesitate, to pronounce it as fraudulent. These, indicia
Second. The next question which properly presents itself for consideration relates to the fraudulent intent of Elizabeth Cordell and Angeline Cordell in taking a conveyance of the real estate deeded to them respectively. The rule is well settled, that to make a' conveyance fraudulent as to the grantor, fraud or fraudulent intent must be shown on the part of the grantee^ as well as the grantor. (18 Wend. 365. 2 John. Ch. 35. 18 John. 515.) If, however, there was no consideration in fact nor any evidence to that effect, then as a matter of course Elizabeth and Angeline Cordell each had knowledge of the intention of John P. Cordell, and a fraudulent intent on their part must be presumed. In that contingency neither of them was a hona fide purchaser, and was not in a position to claim a want of knowledge of the intention of the defendant John P. Cordell. The proof in the case bore upon this as well as the questions already discussed, and it can scarcely be insisted that there was no proof because positive evidence was not introduced. Circumstantial evidence is often as potent as direct testimony; for circumstances can not lie, while human testimony is often uncertain and unreliable. Some of the remarks made in discussing the other points, as to. the general characteristics
Third. The point urged on the motion for a nonsuit, that there was no allegation in the complaint of any bad faith or fraudulent intent on the part of Angeline Cordell, I think can not be sustained. The complaint alleged that she gave no consideration for the premises in Watervliet, conveyed to her, and that the whole consideration came from her husband. The whole statement presented a case showing that a fraud had been perpetrated by her husband John P. Cordell, in conveying away his real estate with an intent to defraud his creditors, and that she was a party to that fraud, for his benefit. If the complaint was informal, it could have been amended at the trial, and it is not too late, even now, to grant such an amendment as would make it conform to the proof. I think, however, it is sufficient, and the objection is not a valid one.
Fourth. The remaining exceptions relate to the charge of the judge, and his refusals to charge. He is supposed to have erred in refusing to charge as requested, and in charging in several particulars which I shall' have occasion to examine.
(1.) He declined to charge that in the absence of any express evidence to establish a fraudulent intent in John P. Cordell, the plaintiff was bound by his evidence which showed that the conveyance was made in good faith and for a valuable consideration, but submitted the same for the jury to determine. I see no objection to such refusal, or to this portion of the charge. The question whether the conveyance was made in good faith and for a valuable consideration was for the jury; and if the judge had charged as requested he would have disposed of the case without submitting it to them. Even if the defendant is correct in
(2.) The next exception also is not well founded. I do not think that the judge was authorized to 'Charge that the evidence showed that the transfer from John P. Cordell to Elizabeth was made for a good consideration. The evidence was to be considered in connection with the circumstances attending the case. To claim thus much, it would be necessary to assume that the testimony of John P. Cordell was entirely consistent with all the other facts appearing upon the trial. If there were any inconsistencies it was the duty of the jury to reconcile them if they could, and if they could not, to give credit to such portion of his testimony as was justified by the circumstances. It was peculiarly within their province to determine whether his evidence established a valid consideration, and this was properly submitted to them by the judge.
(3.) Nor do I think that the succeeding exception can be upheld. There certainly were some circumstances which tended to show that Elizabeth Cordell was not a Iona fide
(4.) I am also of the opinion that the judge committed no error in refusing to instruct the jury that if John P. Cordell had a fraudulent intent in conveying away his property, any intention of fraud on the part of Elizabeth Cordell, his vendee, was so much the less presumable. Why should it be less presumable because John P. had a fraudulent intent ? I think the judge fairly left it for the jury to determine the matter, as a question of fact.
(5.) The remaining exception to the refusal to charge, and the charge made, is equally untenable. I think the judge would not have been justified in saying to the jury that there was nothing in the case showing that Angeline Cor-dell had any knowledge of, or was a party to, the fraudulent intent of John P. Cordell. She was his wife, and by some means had received a conveyance of real estate in exchange for that owned by her husband, and conveyed by him to Elizabeth Cordell. The circumstances connected with the transactions were somewhat unusual, and, in the absence of any explanation, at least liable to suspicion. While then the judge stated there was no direct evidence upon that point, he left the whole matter to the jury as a question of fact. There was no legal error in this, and it was quite as favorable a disposition of the point presented as the defendants had a right to require.
In conclusion, I am satisfied that no error- was committed by the judge in disposing of the various questions raised upon the trial, and I am not prepared to say that there is any good reason for setting aside the verdict of the jury. A charge of fraud in a case like this, must depend very much upon the incidents surrounding it. Fraud is rarely perpetrated
Judgment affirmed with costs.
Peckham, Miller and Ingalls, Justices.]
