Wallach v. Wylie, 28 Kan. 138

28 Kan. 138 | Kan. | 1882

The opinion of the court was delivered by

Valentine, J.:

This is an action of replevin, and the main question involved in the case is, which had the prior right to the possession of the property in controversy — Moses Wallach, or William H. Wylie? The property originally belonged to Nathan Stetter, and Wallach claimed the possession of the same by virtue of a chattel mortgage executed to him by Max N. Stetter, attorney in fact of Nathan Stetter; while Wylie claimed the property by virtue of several attachments which he, as sheriff of Atchison county, Kansas, had previously levied upon the same. These attachments had all been issued in actions brought by creditors of Nathan’ Stetter. The case was tried by the court below, without a jury, and the court found in favor of Wylie and against Wallach, and rendered judgment accordingly.

I. The plaintiff in error, Wallach, claims, as a first ground of error, that some of the findings of fact were not sustained by sufficient evidence. In this we think the plaintiff in error is mistaken. It is true that the direct evidence of Wallach and of Max N. Stetter was in favor of Wallach, but there was a great number of circumstances connected with transactions involved in the case which were against Wallaces theory of the case; and we think these circumstances were sufficient to overbalance and overturn the direct evidence of both Wallach and Max N. Stetter. We think, however, that it is unnecessary to discuss the evidence, as no useful purpose could be subserved thereby. Involved in this question of the sufficiency of the evidence, however, is a question of law, which we shall discuss as follows: Wylie introduced in evidence the deposition of Wallach, taken on behalf of Wylie; and the plaintiff in error, Wallach, now claims that Wylie was and is bound by everything that was testified to in such deposition by Wallach. This certainly is not the law, and such á thing never was the law. It is true, that when a party introduces a. witness, he cannot then impeach the general character or reputation of such witness for truth and veracity; and it is generally true, that he cannot show that the witness has made statements at other times and at other places contradictory to those which he testifies to. But neither of those cases is this case. Wylie did not attempt to impeach the general character or reputation of Wallach for truth and veracity, nor did he attempt to show that Wallach had made statements at other times and at other places contradicting the statements made by him in his deposition; although Wylie would certainly have had the right in the present case to show such contradictory statements, for the very good reason that Wallach himself was a party to this action. Wylie could have shown such contradictory statements, not for the purpose of impeaching Wallach, but as original evidence — original evidence of Wallach’s admissions.

The principal fact in controversy in this case was, whether the chattel mortgage executed to Wallach by Max N, Stetter, as the attorney in fact of Nathan Stetter, was executed for the purpose of hindering, delaying and defrauding the creditors of Nathan Stetter, or not; and the deposition of Wallach was introduced by Wylie for the purpose of proving, or tending to prove, that it was; and of course Wylie believed that it did prove, or tend to prove, that fact. It is true that all the direct statements made by Wallach upon the subject were to the effect that the mortgage was executed in good faith, and not for the purpose of hindering, delaying or defrauding the creditors of Nathan Stetter; but the deposition also contained many statements of facts and circumstances which Wylie believed proved, or tended to prove, that the mortgage' was not executed in good faith, but was executed for the purpose of defrauding the creditors of Nathan Stetter, and which statements of facts and circumstances Wylie believed were sufficient to overturn and destroy all the direct statements of good faith made by Wallach, and prove the very reverse.

The plaintiff in error, Wallach, seems to claim that Wylie is bound by the direct statements of Wallach, and that he cannot use the facts and circumstances testified to by Wallach to overturn these direct statements. This claim is certainly erroneous. Supposing that these direct statements in fact proved, or tended to prove, one thing, and that the detailed facts proved, or tended to prove, the reverse, and that the detailed facts were sufficient to overbalance and overturn the direct statements: then why should Wylie be bound by the direct statements, in preference to the detailed statements of the facts? Wylie certainly had a right to introduce in evidence the deposition of Wallach as a whole, and to rely upon what it would prove or disprove as a whole, although taking it as a whole, it would disprove some of the direct statements made by Wallach. A party never was concluded by the statements of any one of his witnesses. He always had the right to introduce other competent testimony to prove his case, although such testimony might contradict the statements of a previous witness, and might incidentally tend to impeach the testimony of such previous witness. (1 Greenl. Ev., §§ 443 to 444a; Wharton’s Ev. in Civil Cases, § 549.) The rule that a party shall not impeach his own witness, goes only to the extent that a party shall not introduce evidence for the mere purpose of impeaching one of his own witnesses; and it does not go to the extent that he may not introduce evidence to prove his case, although incidentally such evidence may impeach or contradict one of his previous witnesses. Mr., Wharton says, in his work on Evidence (see section just cited) that “In this country, while a party cannot ordinarily discredit his own witnesses, his right to contradict such evidence is unquestioned.” Many of the •detailed facts and statements which Wylie proved by Wallaces deposition could not have been proved by any other witness, and hence there was a strong and unavoidable necessity for Wylie to make Wallach one of his own witnesses; but in doing so, he did not place himself in the helpless condition of being ruthlessly and inexorably bound by all the statements made by Wallach in Wallach’s own favor. He still had the right to introduce other testimony, the testimony of Wallach himself, and of other witnesses, if they could be found, to prove that the facts of the case were not such as Wallach stated them to be in his general statements.

II. The plaintiff in error, Wallach, also claims that the ■court below erred in admitting certain evidence of Henry Eriend and others, tending to show transactions had between Stetter and others after the execution of the chattel mortgage to Wallach, and wholly unconnected with the execution of such chattel mortgage. Now the law upon this subject is just as it is claimed to be by the plaintiff in error, but such law has no application to this case. The transactions had after the execution of the chattel mortgage were not separate and independent transactions, but were parts and portions, along with the execution of said chattel mortgage of one general scheme, plan and arrangement, had between Wallach and Max N. Stetter, who was Wallach’s son-in-law, to dispose of the property of Nathan Stetter, so as to hinder, delay and defraud the creditors of Nathan Stetter. This is the theory upon which Wylie and the attaching creditors introduced the evidence; and we think the evidence in the case sustains such theory, and that the evidence objected to was> competent. The chattel mortgage was executed on Saturday, December 20, 1879, in conjunction with other transactions had at the same.-iime at Atchison, Kansas, all appearing to be fraudulent; and immediately thereafter, Wallach and Max N. Stetter went to Emporia, Kansas; and on Sunday, December 2'r} 1879, Max N. Stetter, the attorney in fact of Nathan Stetter, in conjunction with his father-in-law Wállach, sold and transferred two stocks of goods belonging to Nathan Stetter, one situated at Emporia, Kansas, and the other at Newton, Kansas. In connection with this case, and with reference to the same transactions, see Keith v. Stetter, 25 Kas. 100; Moon v. Helfer, 25 Kas. 139; Simon v. Stetter, 25 Kas. 155. These transactions at Emporia were unquestionably fraudulent, and were part and portion of the general plan and arrangement previously entered into between Wallaeh and Max N. Stetter, to hinder, delay and defraud the creditors of Nathan Stetter, of which the execution of the chattel mortgage on the day before was another part and portion of the same general plan and arrangement. The evidence of the transactions at Emporia is the evidence of which the plaintiff in error, Wallaeh, complains. But we think it was competent, as a part of a general whole, of which the execution of the mortgage was another part of the same general whole. The transactions at Emporia were not unconnected with Wallaeh or with the execution of his-chattel-mortgage, but were simply additional transactions in carrying out the same general design and purpose; and Wallaeh was probably the brains and soul of all of them.

III. The chattel mortgage executed by Max N. Stetter toWallaeh purported to secure the sum of $7,920 of indebtedness due from Nathan Stetter to Wallaeh. The court below found that the sum of $3,000 of this amount was bona fide' indebtedness, and that the sum of $4,920 thereof was fraudulent, and was merely a pretended indebtedness without any basis therefor. And then the court held, as a conclusion-of law, that as a portion of the indebtedness pretended to be secured by the' chattel mortgage and the larger portion thereof was fraudulent, it rendered the whole mortgage utterly void and of no effect. Of this conclusion of law the plaintiff in error, Wallaeh, now complains. We think, however, that this conclusion of law is correct. The statutes of this state provide that every transfer of-property, made “ with the intent to hinder, delay, or defraud creditors,, . . shall be deemed utterly void and of no effect,” (Comp. Laws of 1879, p.464, §2;) and this chattel mortgage was unquestionably executed with just such an intent and for just such a purpose. Mr. Jones, in his work on Chattel Mortgages, § 339, says that “An overstatement of the amount secured, made with a fraudulent intent to hinder, delay and defraud the mortgagor’s creditors, renders the mortgage void ;”.and further he says, (§ 350,) that “If a mortgage be void because of an intention participated in by both parties to delay, hinder and defraud the mortgagor’s creditors, it is fraudulent in toto, and cannot be supported to any extent as against such creditors; it cannot be supported to the extent of an actual debt covered by such mortgage.” And he also says, in the same section: “A mortgage which contravenes the insolvent laws as to some portion of the debt secured is wholly void.” See authorities cited by Mr. Jones; and also authorities cited in brief of counsel for defendant in error, as follows: Horton v. Williams, 21 Minn. 187; Russell v. Winne, 37 N. Y. 591-6; Rich v. Levy, 16 Md. 74; Robinson v. Holt, 39 N. H. 557; Young v. Pate, 4 Yerg. 164; Butts v. Peacock, 23 Wis. 359; Kayser v. Heavenrich, 5 Kas. 324; Smith v. Hardy, 36 Wis. 422; Henderson v. Henderson, 55 Mo. 555; Tompkins v. Wheeler, 16 Pet. 118.

IV. The plaintiff in error, Wallach, also claims that the court below erred in this case in rendering judgment in favor of Wylie and against Wallach, because the attaching creditors in the other suits took personal judgments in their favor against Nathan Stetter without any order with reference to the attached property. There was no error in this. All of the attached property had been previously sold, and the proceeds thereof were then held subject to the further order of the court; and all this had been done by the express order, direction and permission of the court. Hence there was no necessity, at the time that the court rendered the several judgments in the attachment cases, to make any further orders for the disposition of the attached property; there was really nothing to dispose of, except the proceeds of the property. When this suit and, all the attachment suits are finally determined, the court may make a general order disposing of the proceeds of the attached property as shall be just and proper.

The judgment of the court below will be affirmed.

All the Justices concurring.!