Salmon v. Smith

58 Miss. 399 | Miss. | 1880

Campbell, J.,

delivered the opinion of the court.

The decree of the chancellor, when tested by what we are led, by the argument made here, to believe was made the especial subject of contention before him, is correct; but it is plain to our minds that the real matter of controversy presented by the record is different from that argued here, and, as we suppose, pressed on the attention of the chancellor. '

The case stands thus, viz. : The bill is against husband and wife, to subject to the demand of the complainant property held by the wife as the result of a series of fraudulent acts of the husband to hinder and defraud his creditors. The charge is that the husband owned the property, and, as part of his-scheme of fraud, conveyed the property sought to be reached by the bill to his brother, who served as a mere conduit to-vest title in the- wife of the grantor, which wife had no means with which to buy and pay for the property, and whatever money, if any, was used in the transactions was the husband’s, and not the wife’s. The'husband answered the bill, denying its allegations as to his alleged fraudulent transfer to his brother, and stating that the conveyance was made because of his indebtedness to his brother, and in payment of it, and ini good faith. The wife answered the bill, stating that she had no personal knowledge of the transaction between her husband and liis brother, but that she purchased from the brother with, her own means, and not with the means of her husband, as. charged by the bill.

The answer of the husband is directly responsive to the bill as to the conveyance by him to his brother. Both answers assei’t the possession by the wife of ample means to have made the purchase of the property.

The efforts on both sides seem to have been directed wholly to the contest over the question whether the wife had money of her own sufficient to have made the purchase, and the testimony makes it quite clear that she did not; and if we regarded this as the test question of the case, we would agree with the chancellor. But the real question is as to the validity of the conveyance by the husband to his brother. If that was valid,, it placed the title beyond the reach of the creditors, and the holder by such valid conveyance could give the property to the wife if he chose, and it was immaterial whether she had money of her own, and paid for it, or not.

The answer of the husband, responsive to the bill, asserts the valuable and sufficient consideration for his conveyance to his brother, and its good faith, and there is no evidence as to this. Not a question was asked about it. It seems to have been assumed in the progress of the cause that this was true, and that the title of the wife was to stand, or not, as it might be determined whether or not she purchased the property from the grantee of her husband with her own money.

If the separate answer of the husband, responsive to the bill, enured to the benefit of the wile, who answered separately, and did not answer as to the conveyance by her husband to his brother, further than to state her want of knowledge of it, it follows that the validity of that conveyance is established as a fact in the case; and, that being established, no further Inquiry is proper. This is an end of the controversy. This brings us to the question whether the answer of one defendant, responsive to the bill, enures to the advantage of a co-defendant as evidence in his favor. '

It seems to be well settled, and on satisfactory grounds, that the answer of one defendant cannot be used against another defendant, unless under certain circumstances constituting an exception to the general rule. The text-books and cases abound with statements and illustrations of this rule and its exceptions; but there is strange silence in most of the text-books, and comparatively few cases in the reports, on the question of the effect of the answer of one defendant in favor of a co-defendant. In the text of Danieil’s Chancery Practice and Pleading, voluminous and elaborate as it is, we have been unable to find an allusion to it, and this is true of other similar works. In a note to the fifth édition of Dani ell’s work we find this language: “ But the answer of a defendant which is responsive to the bill is admissible as evidence in favor of a co-defendant (Davies v. Clayton, 5 Humph. 446); more especially where-such co-defendant, being the depositary of a chattel claimed by the plaintiff, defends himself under the title of the other defendant. Mills v. Gore, 20 Pick. 28. But see Morris v. Nixon, 1 How. (U. S.) 118; Cannon v. Norton, 14 Vt. 178.” 1 Dan. Ch. Pr. 841, note 7.

In 3 Greenleaf on Evidence, sect. 283, is this language : “And though it is laid down as a general rule that the answer of one defendant cannot be read by another defendant as evidence in his own favor, yet the universality of this rule has been controverted, and it has been held that where the answer in question is unfavorable to the plaintiff, and Is responsive to the bill by furnishing a disclosure of the facts required, it may be read as evidence in favor of a co-defendant, especially where the latter defends under the title of the former.” Citing Mills v. Gore, 20 Pick. 28 ; Miles v. Miles, 32 N. H. 147; and Powles v. Dilley, 9 G-ill, 222, which seem to fully support the text quoted. In Miles v. Miles, the case in’ 20 Pick. 28 and Field v. Holland, 6 Cranch, 8, are cited, and in the opinion of the court in the case cited as in 9 Grill, 222,-it is stated as a just inference from the cases cited in argument “ that it has been the practice of the Chancery Court, hitherto unchallenged,” to read the answer of one defendant in favor of another defendant. It was said in that opinion that only one English case was referred to as bearing on the question, and it was not in point, because of the peculiar facts as not presenting the question for decision.

The case cited in the note to Daniell’s work, mentioned above, from 1 How. (U. S.) 118, contains no announcement by the court of any rule on the subject further than may be inferred from the declaration that the court was not influenced by the answer of one of the defendants in coming to its conclusion. The case in 15 Yt. 178 contains the declaration by the court that “ the answer of one of the defendants is not evidence for the other.” r

In McKim v. Thompson, 1 Bland, 160, the chancellor said: *( It is, in general, true that the answer of one defendant cannot be used as evidence for or against another defendant; ” but in his opinion in Lingan v. Henderson, 1 Bland, 261, the chancellor announced the rule to be that, “ where the defence made by one defendant goes to the whole cause of complaint, and the plaintiff fails to establish his case in opposition to such defence, he cannot be relieved in any way whatever, although his claim should be confessed by the other defendants.” To the same effect is Clason v. Morris, 10 Johns. 524, in which it is announced that where there are two defendants having a joint interest, and one appears and answers, and disproves the plaintiff’s case, the plaintiff cannot have a decree against those who made default. The case of Field v. Holland, 6 Cranch, 8, supports the view that the answer of one defendant is evidence against the plaintiff, and enures to the benefit of co-defendants.

The settled doctrine of this courtis, that when one of several defendants makes default, followed by a pro confesso, and others defend, and it appears from their defence that, on the whole case, the complainant is not entitled to succeed, he will not be allowed to do so even against him who made default. Minor v. Stewart, 2 How. 912; Hargrove et al. v. Martin, 6 Smed. & M. 61, recently followed by us.

The principle supporting this rule is that the complainant must show himself entitled to relief or he shall not have it, and it matters not which of those whom he calls on to defend may show that his complaint is groundless.

In this case the husband answered the bill fully, responding to it and denying its allegation of fraud in his conveyance to his brother, and stated in explanation the facts of the transaction, which, if true, made it a proper one. The wife, reposing on the full answer of her husband, simply denied personal knowledge of the transaction between her husband and his brother. The complainant did not except to her answer for incompleteness on this point, as he might have done, and, disregarding the real point of attack, directed all his efforts against another part of the defence. In this he was successful, but left unassailed the most formidable barrier to the accomplishment of his aim, viz.: the valid transfer by his debtor to his brother.

Though this is set up by the answer of the husband alone, so long as it is not overthrown it shows that the complainant is not entitled to the decree he sought and obtained in the court below.

If the real object of the suit is to reach assets of J. M. Salmon, hid away in improvements of his wife’s laud or paid to D. D. Salmon for her title, the litigation should be shaped to that end.

The decree is reversed, and, believing that attention was not directed in the court below to what we have declared to be the real ground of controversy, we decline to render here the decree which the record shows should have been made in the court below, and remand the cause for such proceedings in the Chancery Court as the chancellor may direct.