44 Minn. 159 | Minn. | 1890
This is an action to declare and enforce a trust under Gen. St. 1878, c. 43, § 8, in favor of plaintiff as a creditor of the defendant Sumner W. Farnham, in land conveyed by one Butler to the defendant Eunice E. Farnham, upon a consideration, as claimed by plaintiff, paid by Sumner W. in fraud of his creditors. The action was tried in the court below without a jury, and findings of fact made, and judgment ordered and entered, in favor of the defendants. The conveyance by Butler to defendant Eunice E. was made March 16,1883, for a consideration of $35,000, of which $20,000 was paid with money unquestionably belonging to the latter. The only controversy with respect to whose money paid the consideration was with regard to the other $15,000. This was paid by a cheek drawn by Sumner W. for $5,000, and another drawn by the firm of which he was a member for $10,000, to take up a loan he had made in his own name to another firm. Upon these facts the $15,000 so paid was prima facie the money of Sumner W., and, as a part of the indebtedness to plaintiff was then owing, the payment of the $15,000 was, under the section referred to, presumptively fraudulent as to what was then owing to plaintiff. The burden was then on the defendant to disprove a fraudulent intent in so paying that part of the consideration.
It must be apparent that, if the money received upon the sale of the third interest in the Hennepin island property did not belong to Mrs..Farnham as soon as it was paid by the purchaser, it did not, •so far as concerns the $15,000 at-anyrate, become hers by anything done between that time and the transaction assailed in this case.'
But while the facts do not show any valid trust upon the transfer of the Hennepin island property, nor that the money derived from a sale thereof was the money of Mrs. Farnham, it does not follow that the evidence introduced from which the court found the facts was obnoxious to the objection made to it that it was incompetent, irrelevant, and immaterial. The offer of the evidence was not limited to any particular issue, but was general. If competent to prove and relevant to any of the issues in the cause, it was admissible. In addition to the issue as to whose money was used in paying for the land conveyed to Mrs. Farnham, was the other issue — material in case the money was that of Sumner W. — was it paid by him, upon the conveyance made to her, with a fraudulent intent ? And on this issue the evidence referred to was proper; for if it tended to prove, as well it might, that the Farnbams in good faith believed the money belonged to Mrs. Farnham, and it was paid for her use on the conveyance to her upon that belief, or that those transactions raised a moral obligation on his part to pay it to her, and for that reason and from no other motive, it would certainly tend to disprove a fraudulent intent on the part of Sumner W. in so paying it.
Upon the matter of fraudulent intent, the only finding was that there was no evidence that the firm of which Sumner W. was a member, or either member thereof, was insolvent at the time of the conveyance to Mrs. Farnham, nor that she purchased the land with intent or for the purpose of hindering, delaying, or defrauding any of the creditors of that firm, or of Sumner W. The $15,000 having been the money of Sumner W., the statute, as to his creditors, attaches to the payment of it by him upon a conveyance to Mrs. Farnham the presumption that it was fraudulent, and it was not enough that there
There are some assignments of error on rulings as to evidence, which, though not necessary to the decision of this appeal, we will decide, in view of a second trial. Sumner W. was called as a witness by the plaintiff, and, being objected to on behalf of the defendant Eunice'E.on the ground that he was her husband, the court held he could not testify. Afterwards, in proving her case, she called him as a witness in her behalf, and the plaintiff objected to him on the ground that she had elected that he should not testify in the case. The court overruled the objection. In both rulings the court was right. Gen. St. 1878, c. 73, § 10, provides that a husband cannot be examined for or against his wife without her consent, nor a wife for or against her husband without his consent. To this rule are excepted a civil action or proceeding by one against the other, and a criminal action or proceeding for a crime committed by one against the other, and, by Laws 1889, c. 72, are excepted “proceedings supplementary to execution.” An ordinary civil action is not, whatever may be its purpose, a proceeding supplementary to execution, within the meaning of this statute. Such a proceeding is one established and regulated by statute, and is as well known by the designation here given as any statutory proceeding by the designation given it in the statute. An action may come after execution, ■ may be even in aid of it, but it is not the proceeding referred to in the act of 1889. If the inability to call the husband or wife in an action brought after supplementary proceedings renders the discovery on those proceedings less beneficial to the party, that is a consideration for the legislature. We cannot extend the exception be
Where a witness, on direct examination, testifies as though from personal knowledge, and the cross-examination discloses that he testified only from hearsay, the opposite party, upon motion seasonably made after it is so ascertained, has a right that the testimony shall be struck out. This is no more than saying that a party may object to incompetent evidence .as soon as its incompetency is known to him and can be made to appear to the court.
Judgment reversed, and new trial ordered.