84 Iowa 705 | Iowa | 1889
Lead Opinion
The conveyance of the land by Henry Voorhies, the judgment debtor of the plaintiff, was made March 2, 1882, and the defendants insist that ■the case affords no proofs upon which it can be found that at that time Henry Voorhies was indebted to the plaintiff. If the defendants’ claim in this respect is supported by the record, it is of course useless to consider other questions, as under that state of facts the plaintiff could not have been prejudiced by the transfer. The burden is with the plaintiff, not only to show the fraudulent transfers of the land, but that at the time he was a creditor, and affected thereby.
The only evidence we find in the record, in any manner tending to show when the indebtedness arose, is that of the plaintiff, and the judgment record in
Omitting the “statement of account” referred to in the testimony, and there is nothing on which a finding can reasonably be based, that there was an .indebtedness in March, 1882. The most that can be said is, that Henry Voorhies was then sending to the plaintiff live stock to be sold on commission; drawing drafts on the plaintiff which were charged to him, and receiving ■credit for stock received. It was a debit and credit account. It is quite evident that the statements'of the plaintiff are based on the “statement of account,” which is designated as exhibit “A” to his deposition. The exhibit was below objected to as incompetent and immaterial, as no proper foundation had been laid, and it was not a proper subject of book account, and the
“Henry Voorhies, in Account with J. N. Pidcock.
“Statement of account, commencing October 14, 1881,” showing almost daily items of debitfor “drafts” paid to “H. Voorhies” and to “F. Hershey” and to “H. V. per F. H.” and “H. Voorhies note taken up at bank by J. N. Pidcock,” etc; and items of credit, car of “sheep,” “stock” from “Chicago” and “Cincinnati,” “Covington” and other places, and“H. Voorhies” note given in settlement, etc. The account shows December 22, 1881, the first “note given by H. Voorhies for the sum of three thousand, four hundred and forty-one dollars and fifty-nine cents, for three months in settlement.” This note is credited on that date, and is again entered on debit side of the account “March 29, 1882, H. Voorhies’ note taken up at bank by J. N. Pidcock, three thousand, four hundred and ninety-four dollars and twenty one cents,” and account is again credited on March 25, 1882, with a note of H. Voorhies, and so on, showing repeated entries of notes as above, at different times, and entries of items as above stated, showing large and almost daily dealings between the two parties until December 2, 1884, when the balance due, including notes from H. Voorhies to J. N. Pidcock is six thousand, three hundred and eighty-four dollars and eighty-seven cents, as shown by the said statement. This statement shows that on February 18, 1882, there was due plaintiff seven thousand, six hundred and sixty-six dollars and fifteen cents, besides a note given by Voorhies to the bank, which was taken up by the plaintiff March 29, 1882, of three thousand four hundred and ninety-four dollars and twenty one cents.
There is nothing in the record to show whose book account this exhibit is a copy of, by whom it was kept, when the entries were made therein, whether or not. they are believed to be true, nor is there any compli-
The plaintiff urges that Henry Yoorhies does not deny that the plaintiff advanced these sums of money, or that he is entitled to credits other than those shown in the statement. This is hardly sustained by the record. The answer generally, and also specifically, denies the advancements of money as claimed by the plaintiff and denies the fraud. If the argument has reference to the testimony of Henry Yoorhies, it is sufficient to say that no such denial was necessary until there was competent proof to show the fact. It was not for him to disprove, but for the plaintiff to prove' the fraud. As the exhibit is so clearly inadmissible on the ground of there being no foundation for its admission, it is unnecessary for us to pass upon the point urged of the facts not being proper subjects of book account.
With the failure of proofs to show an indebtedness at the time of the transfer of the land by Henry Yoor-
Rehearing
UPON BEHEABING.
I. A petition for rehearing was allowed in this case, and it has again been submitted upon arguments of counsel of both parties. The decree of the district court declared the conveyances void and set them aside, but gave one of the defendants a claim upon the land prior to the plaintiff’s judgment. From this decree both the plaintiff and this defendant appeal. The defendant’s appeal was not considered in the foregoing opinion, for the reason that the decree setting the conveyance aside rendered the consideration of the defendant’s appeal unnecessary.
II. Upon a re-examination of the case, we are satisfied that the conclusion reached in the foregoing opinion is correct. If the account referred to in the opinion be considered, it fails to show an indebtedness prior to the first conveyance assailed by the plaintiff. It shows almost daily debits and credits. Now, it is-a familiar rule that payments upon an open account are to be applied to the payment of debit items in the order of their dates. See Bank v. Hollingsworth, 78 Iowa, 575. The accounts and the other evidence of the plaintiff do not show the amount of the indebtedness at any time before the notes were given. We cannot presume that at any time prior to the execution of the deed for the land the indebtedness existed. But the debtor testifies that a long time before the notes were given,, and at other times, there were arrearages upon the account against him; but it is not shown that the