| Mich. | Feb 11, 1880
This was a bill filed in aid of an execution levied upon certain lands. In May, 1874, defendant Hiram B. Bose, with Alanson S. DeYoe, executed a note to complainants for a little over two thousand dollars. The debt to complainants for which this note was given was that of DeYoe. In December, 1875, a judgment was recovered upon this note, an execution was issued, and a levy made upon certain lands of defendant Bose in March, 1876. Afterwards the judgment was set aside and a new trial awarded, but the lien obtained under the levy made was permitted or ordered to stand. The case came on for trial, and in February, 1877, a judgment was recovered, an execution issued, and a levy made by virtue thereof on the 26th day of the same month.
Defendant Hiram B. Bose was the owner and in possession of 160 acres of land at the time he signed the note referred to. On the 26th day of May, 1875, he mortgaged a part of the premises to Horace M. Peek. This mortgage is not now claimed to have been given for any purpose except to have Mr. Peck assist him in settling with complainants, which not having been done, that mortgage plays no farther part in this controversy.
December 27, 1875, Bose conveyed to defendant Prosser forty acres, and about the time the suit was commenced on the note (the particular time does not clearly appear) he conveyed eighty acres to one Palmer, thus leaving but forty acres in his name, upon which he resided.
Defendant Prosser was not called as a witness. Bose testified that he made a bona fide sale to Prosser, receiving from him seven hundred dollars in money and a note for a portion of the balance of the agreed consideration. What he did with this money he is wholly unable to state, and the manner in which the note was paid, if
It is insisted on the part of defendant Prosser that under Comp. L., § 4717, his rights cannot be affected by the fraud of Bose, unless the evidence connects him with the fraud. Admitting this, we are not satisfied from the evidence that Prosser has paid in fact any consideration for the premises. True, the evidence of Bose, standing alone, might tend to prove a payment of seven hundred dollars in cash and some note transfer for the balance, yet his evidence does not satisfy us that such was the fact, when we consider it in connection with all the other evidence in the case. While it may be true that Prosser was not called upon to take the stand and explain the transaction until a prima facie case was made out against him, yet this is just that kind of a case, as it now stands, that seems to require some affirmative showing on the part of Prosser in order to sustain the conveyance. And if the transaction' were an honest one on his part, he should not have permitted any doubtful matter of right to have stood in his way of making a full explanation. A person certainly is not obliged to answer vague and indefinite charges, but when made a party defendant in a litigation where the question at issue is the bona fides of a purchase made by him, and evidence is given tend
The decree below must be reversed, and a decree rendered in favor of complainants, with costs of both courts.