18 Wend. 60 | N.Y. Sup. Ct. | 1837
[115] When this cause was formerly before this court, I gave the reasons at large from which I then arrived at the conclusion, that a voluntary deed, not in fact intended to defraud creditors, became valid as against creditor?
[116] My vote in favor of the reversal of the judgment, when this case was here before, was certainly founded upon the supposition that it appeared from the bill of exceptions that the judgment, under which the plaintiff in error claimed was still in full force, so as to estop Mrs. Genet and her husband from alleging that this lot did not come to them by descent or devise from Mrs. Osgood; and also that the plaintiff in error had offered to prove that the only question in controversy on the trial between the Manhattan Company and the heirs and devisees of Mrs. Osgood, was as to the validity of the deed to Mrs. Genet; so that it would have been impossible for the jury in that case to have found that any lands came to the defendants by descent or devise, unless they had arrived at the conclusion that this particular conveyance was fraudulent and void. If such is not the fair construction of the terms of the defendant’s offer, I certainly ought not to have voted for a reversal of the judgment in'the former case; because I there. held, with Mr. Justice Marcy, that there never was an estoppel if there was any other evidence from which the jury might have found the issue in favor of the plaintiffs, although they might have been satisfied on that trial that this particular deed was not invalid. If the deed to the other daughter, who was then unmarried, was also in controversy before the jury, which deed was prima facie fraudulent as against prior creditors of the mother, that was sufficient to justify the verdict of the jury. Her deed being prima facie fraudulent, the title to that lot did not pass by the deed to Susan K. Some lands, to wit, that lot, had therefore come to all the defendants, either by descent, or by the general devise to them of all the real estate of Mrs. Osgood. And where the evidence in
The plaintiff in error was not prevented, in this case, from showing that there was an actual intention to defraud the creditors of Mrs. Osgood by her giving this deed to Mrs. Genet; and by the subsequent marriage that deed was no longer a mere voluntary deed and without consideration, so as to make it prima facie fraudulent as against creditors. Wood was therefore bound to produce some evidence of actual fraud to entitle him to a verdict; and as he abandoned that ground, he has no reason to complain of the manner in which the case was disposed of by the judge at the circuit. As the production of the record of reversal of the judgment under which, he claimed title, deprived him of the power to tak.e advantage of a technical objection- to the title of the lessors of the plaintiff, on the ground of estoppel, and the idea of establishing any actual fraud in the case being entirely abandoned, the decision of this court in the case of Seward v. Jackson, (8 Cowen, 406,) is conclusive to show that Wood had no legal defence to the suit.
For these reasons I think the judgment of the supreme court should be affirmed.
[117] [118] [119] The material facts in this case as now prescnted, are substantially the same as when the cause was before the supreme court in 1829, reported in 3 Wendell, 27. The supreme court, on that occasion, ordered a new trial, (the verdict having been found for the defendant,) on the ground that the circuit judge erred in deciding that it was competent for ti.e defendant, Wood, to show by parol evidence, that the validity of the deed of Maria Osgood to her daughter Martha B. Osgood, under which the plaintiff claims title, was in question in the suit of the Manhattan Company against the heirs and devisees of Mrs. Osgood; and on the grounds, that the judge charged the jury that the evidence proved the deed to be fraudulent against creditors, and that the finding of the jury in the Manhattan cause was conclusive against the right of the plaintiffs in this suit, to the premises in question. The supreme court holding, in the spirit and letter of the cases of the Duchess of Kingston, (2 St. Trials, collected by Howell and others, 538. Outram v. Morewood, 3 East, 346. Sintzewick v. Lucas, 1 Esp. R. 43. Smith v. Sherwood, 4 Conn. R. 27 6. 4 Day's R. 274, 431,) that it must appear from the record, that the fact in issue in this suit, was in issue in the suit of the Manhattan Company, and directly decided therein, to be conclusive between the parties, and that no parol evidence could be admitted to prove that fact. A new trial was had, and upon this second trial, the circuit judge, in obedience to the decision of the supreme court, refused to permit the defendant to give evidence of the facts on which the verdict in favor of the Manhattan Company was found, and it hence became unnecessary to produce the record of this court reversing the Manhattan judgment, and consequently it was not offered or given in evidence. On this second trial, a verdict was found for the plaintiff. Application was made to the Supreme court for a new trial, which was denied; the reasons of the court, as given by Chief Justice Savage, will be found in 8 Wendell, 16. He maintaining the same doctrine put forth by Mr. Justice Marcy, on the former occasion, to wit, that the verdict and judgment in favor of the Manhattan Company, was not and could not be deemed as conclusive, unless it had been pleaded by way of estoppel ; and that where the party waives his plea of estoppel, and pleads only the general issue, the judgment is not conclusive, and the party is at liberty to controvert the fact anew, and the jury to find the truth. The learned chief justice passes in review many decisions having a bearing on this point, and admits “ they do not all agree—some holding that the former trial is equally conclusive, whether pleaded by way of estoppel or given in evidence on the trial; while
[120] [121] Is is worthy of remark, that neither Mr. Justice Marcy, nor Chief Justice Savage, in the opinions by them delivered and already referred to, appear to consider as at all material, the fact, that the Manhattan judgment was reversed by this court. This is considered by the chancellor as a material fact; being a perfect or sufficient “ answer to the verdict when urged by way of estoppel,” citing Mahony v. Ashton, (4 Harr. & McHenry, 296;) Richardson’s lessee v. Parsons, (1 Harr. & John. R., 253 ; Buller's N. P., 234;”) and he adds,, “ In this case the judgment did not operate on the land, the verdict was a mere estoppel between the parties, and the moment the judgment was reversed and the verdict set aside, the estoppel was gone.” When, therefore, the chancellor says, as remarked by Chief Justice Savage, that the decision in 3 Wendell was correct, we are to understand that he concurs in the judgment pronounced by the supreme court in 3 Wendell, but that he does not agree to the reasoning or the law as put forth by the supreme court which led them to that judgment; for they there hold, that the evidence under the general issue of the Manhattan judgment was not conclusive : a doctrine which the chancellor expressly repudiates, insisting that it is conclusive, but that it is rendered ineffectual by reason of the reversal of that judgment in this court. Senator Seward concurs with the chancellor in this view, except that he does not inquire into the effect of the re
[122] On the trial of this cause before the circuit judge, Wood did offer to prove “ that the defendants in the Manhattan suit, on that trial, in support of their plea of riens per discent, gave in evidence the deed from Maria Osgood to Martha B. Osgood, the wife of E, C. Genet, conveying to her lot No. 11 Cherry-street, —and that the distinct question before the jury on the trial of that issue, was, whether that deed was or was not fraudulent and void as against the Manhattan Company; and whether lot No. 11 Cherry-street, was or was not an asset by descent or devise, in the bands of the defendants or some of them; that evidence was given to the jury touching the same by both parties ; that the plaintiffs contended before the jury, that that lot was an asset, and the defendants that it was not; that the judge gave a clear and decided charge to the jury, that the conveyance of lot No. 11 Cherry-street, was fraudulent and void as against the plaintiffs, and that lot No. 11 Cherry-street, was an asset; that the counsel of both parties distinctly submitted to the jury, the question, whether the lot was or was not an asset, and that the jury decided the question against the defendants ; that exceptions were taken to the charge of the judge to the jury, which exceptions were afterward argued before the supreme court; which court confirmed the verdict, and gave judgment for the plaintiffs in that suit; and that the question in that suit, is the same question involved in this suit.” The judge refused to allow any part of that evidence to be given to the jury, to which the deien dant, Wood, took exception. In my opinion, the judge erred in refusing to admit this evidence. If received, it would have tended clearly to shew, that the validity of the deed from Mrs. Osgood to her daughter, the wife of Mr. Genet, was the determining point of the issue in the Manhattan suit. If the deed was valid, tin judgment must have been in favor of the defendants, for then would the land, not have descended or been devised, but would have come to them by grant; but being invalid, the verdict was necessarily in favor of the plaintiffs, as the lands then did come to the defendants by descent or devise. It would seem that that was indeed the only direct and necessary question to be decided. Every fact decided by that verdict is conclusive and binding upon the party. (6 Wendell, 289.) It was material therefore to know, whether
[123] In Gardner v. Buckbee, (3 Cowen, 120,) where two notes had been given for a vessel which afterwards proved to be unseaworthy, a suit was brought on one of the notes in the marine court of New York. The defendant pleaded the general issue, accompanied with notice of a total failure of consideration, on the ground of fraud in the sale of the vessel: a trial was had on that very point, and judgment passed in favor of the defendant. The plaintiff brought a suit on the second note in the common pleas ; and at the trial, the defendant offered in evidence, in bar of the suit, the record of the judgment in his favor on the other note in the marine court, contending that it was conclusive. On the trial, one of the marine court justices testified, that the matters directly in question before that court, were the unseaworthiness of the vessel at the time of sale, and the knowledge and concealment of that fact by the plaintiff; the court of common pleas decided the former judgment was no bar. Mr. Justice Woodworth, who delivered the opinion of the supreme court, after stating the rule as settled in the Duchess of Kingston's case, says: “The general principle does not appear to be controverted by the counsel for the defendant in error. But it is urged that the judgment in the marine court does not affirm any particular fact in issue in this cause, but is general and indefinite, and that from the language of the record, it cannot be inferred whether the two cases were founded on the same or a different state of facts. It is true, the record merely proves the pleadings, and that judgment was rendered for the defendant; without other proof, it would not make out the defence. The record shows that it was competent, on the trial, to establish the fraud of the plaintiff. Whether fraud was made out, and "whether this was the point upon which the decision was founded, must necessarily be proved by matter extrinsic the record. To do so, is not inconsistent with the record, nor does it impugn its verity. The jury must have passed on the fraud. It was directly in question.” The supreme court, holding the former judgment to be a bar and conclusive, reversed the judgment. So, in Burt v. Steenburgh (4 Cowen, 559), where Burt brought trespass guare clausumfregit, and recovered, and afterwards brought a second action of trespass against the defendant for a renewed trespass upon the same premises upon which the former trespass had been committed ; the defendant on the former trial having attempted to defend himself under a title from George W. Featherstonhaugh, and contended and endeavored to prove that the locus in quo was in a patent granted to Weyfield and Clifford, and not in the Schoharie patent, as was contended by the plaintiff. It was admitted on the former trial, that if the premises were in the Schoharie patent, the plaintiff was entitled to recover; if in the Weyfield and Clifford patent, the defendant was entitled to a verdict, and the verdict was for the plaintiff. The .court held that the record in the former suit, followed by parol evidence that the premises in question were the same in both, was conclusive evidence of the plaintiff’s title to the premises in the second action ; that it operated against the defendant by way of estoppel, whether it was pleaded or given in evidence in the second suit. It would be useless to multiply cases on this point. That the defendant had a right to offer this evidence, was distinctly held by this court in this very case, in 8 Wendell, 35, 45, the opinions of the Chancellor and Senator Seward fully concurring in this precise identical point; and this was evidence, too, of a nature which would most clearly and distinctly operate to conclude the party, and establish the rights of a purchaser at a judicial sale ; it is an estoppel which runs with the land, enters into and becomes a vital part of the purchaser’s title. (Palmer v. Ekins, 2 Strange, 818 ; Trevivan v. Lawrence, 1 Salk., 276, S. C., 6 Mod., 256; Jackson v. Howe, 19 Johns. R., 83).
[124] [125] It is the duty of this and of all courts, to uphold and support judicial
[126] Having come to the conclusion that the judge improperly excluded the evidence offered to be given to the jury on the trial of this cause, it is unnecessary to examine any of the other points raised or argued here. I am in favor of reversing the judgment of the supreme court, and that a venire de novo be issued, to the end that upon another trial, the defendant, Wood, may have an op
On the question being put, Shall this judgment be reversed ? all the members of the court (23 being present) with the exception of Senator Maison and one other senator, voted in the negative.
Whereupon the judgment of the supreme court was affirmed.
Judgment .affirmed.