Abney v. Kingsland & Co. , 10 Ala. 355 ( 1846 )

COLLIER, C. J.

The declarations of the defendant in execution made to the deputy sheriff a short time previous to-the levy on Ned were certainly inadmissible. True, it has' been often held, that what a person in the possession of real or personal estate says, in respect to the same, are admissible? as part of the res gestee. But in McBride and wife v. Thompson, (8 Ala. R. 650,) we said, “it is not to be understood that such declarations aro admissible to every conceivable extent.” That “ the affirmation of the party in possession, that he held in his own right, or under another, is proper evidence as part of the res gestee, which res gestee is his continuous possession; but his declarations beyond this, pxe no part of the subject matter, or thing done, and cannot be received as such. While it is allowable to prove the statements of one in possession, and explanatory thereof, it is not permissible to show every thing that may have been said by him in respect to the title ; as that it was acquired bona fide, and for a valuable consideration ; was paid for by the money of a third person, or his own,” &c.

In the case before us, the defendant expressed a wish that the deputy sheriff should levy on Ned, that the claimant might purchase him for his (defendant’s) benefit, and secure him against creditors — remarking that he had the money in his pocket, for that purpose, &c. The mere statement of the facts is sufficient to show that they are incompetent evidence within the principle of the case cited. The remark made by the court, that the jury should be instructed to disregard the testimony, unless they believed from all the facts and circumstances, that the claimant participated in the fraudident purpose of the defendant in execution, can’tjper se divest the decision of the circuit court of error. Where evidence is pertinent, but insufficient in itself, the court should not assume that the party has no other proof to adduce, and reject it ; but where it is prima facie irrelevant, the person offering the evidence should show how it could be made relevant, by connecting it with other facts and circumstances; if this is not done, the court should refuse to receive it. [4 Porter’s Rep. 321; 1 Ala. Rep. N. S. 506, 540; 3 Id. 16 ; 5 Id. 531; 6 Id. 390, 407; 7 Id. 457, 698.] There is nothing in the record to indicate that any “ facts and circumstances” were adduced previous to the admission of the defendant’s declarations, to implicate the claimant in the intention to defraud defendant’s creditors; and unless the court was then informed that they would be offered, those declarations should have been excluded. We will, however, consider whether the testimony subsequently given, shows the participation of the ■claimant, and whether the legal assumption of the court can be sustained by it.

It may be laid down as a settled principle, that where several persons are proved to have combined together for the same illegal purpose, any thing said or done by one of the party, in pursuance of the original concerted plan, and with reference to the common object, is in reason and legal contemplation the act of all; and therefore will be evidence against any or all of the parties. [1 Phil. Ev. 94-5, and cases there cited. See also, 2 Carr. & P. Rep. 232, 432.] This principle applies with all force to wrongs or injuries for which the law provides a remedy by action merely. Thus, where one indemnifies a sheriff against an act which turns out to be a wrong, it was said the admissions of the former were receivable to charge the sheriff. [4 Wend. Rep. 335; see 2 J. J. Marsh. Rep. 256; 4 Carr. & P. Rep. 375.]

Proof of connection is alwaysan essential preliminary addressed to the court, to let in acts and declarations of a joint wrong doer against his fellow; but it has been held, that the testimony of one witness is enough for this purpose, and that the court will not decide on his credibility. Thus where it appeared that the prisoner said to the witness, in the presence of R, that one F had offered him a sum of.money, if he would kill W, and the prisoner told F he would give him an answer at a subsequent time ; that the prisoner offered the witness a third part of the money if he would commit the murder; that R proposed a mode of doing it; that the witness declined having any thing to do with it, and then the prisoner said he was in jest; and in a few days after the murder was actually perpetrated by F. Held, sufficient proof that the prisoner and R entered into the conspiracy to let in the declarations of -R as evidence againt the prisoner. [10 Pick. 497.] So in Clayton v. Anthony, 6 Rand. Rep. 285, which was an action of trespass by the plaintiff, against the sheriff, for levying on a slave under a fi. fa. against Trigg — after the latter be-? ing insolvent, had conveyed the slave, with eleven others, in trust, to satisfy a debt due to the plaintiff, and they had been sold to the plaintiff at auction, where there were but few bidders. The possession of the slaves was not changed until some time after the sale, and there were other circumstances showing that there was a fraud in the sale. On the part of the sheriff, it was offered to prove Trigg’s private request to a bidder at the trust sale, to forbear, as the plaintiff was bidding for his (Trigg’s) benefit: Held, that the court was to judge of the circumstances by which a community of design between the plaintiff and Trigg, to defraud Trigg’s creditors was attempted to be shown; and'being satisfactory, the declarations of Trigg were admissible, though the plaintiff was not present. And where a judgment was entered on a bond and warrant of attorney against the father, in favor of the son, a combination between them having been proved to defraud the creditors of the former, the creditors were permitted to give in evidence declarations by the father, in the absence of the son, that the bond was given for the sole purpose of keeping off creditors, and that it was without consideration. [1 Rawle’s Rep. 362; 8 Ala. Rep. 104.]

Placing out of view the declarations of the defendant in execution, and the question is, does the other testimony in the cause establish a combination between him and the claimant to defraud his creditors. The testimony upon this point may be thus condensed: the claimant, at the time of the sale under execution, was- a young man, about twenty three years of age, without any visible means — he had been a clerk in a store for ten months, and afterwards did a moderate business as a partner in a drug store : Further, that the money with which Ned was purchased, was obtained upon paper made at his instance and for his benefit, “without any agency or ownership oir the part of the defendant in execution;” that although the slave was bid off by the claimant, the purchase money was paid by his brother, who a short time previous to the levy on "York, carried off some slaves of their father to Texas. Ned returned to the plantation of the defendant in execution shortly after he was purchased by the claimant, and when exchanged for York, the latter went there in his stead; and it was proved had been hired to the defendant. We cannot think that these facts warrant the inference that the claimant lent himself to assist his father in the perpetration of a fraud, so as to legalize the admission of the declarations of the latter. Now, conceding that the claimant was a young man without visible resources, yet he may have had credit, or the credit of friends may have enabled him to effect the loan of a sum sufficient to purchase the slave; keeping out of view what the defendant in execution said to the deputy sheriff, as we must, in considering the effect of the preliminary proof, and this latter supposition is reasonable inference.

The fact that the purchase money was paid by the claimant’s brother does not show that the funds of the former were not used, or that their father provided them. This brother had not carried his father’s slaves to Texas until Ned had been sold under execution — in fact, not until a short time previous to the levy on York. And it does not appear, that these slaves had been sold, or money obtained by any disposition of them.

It is admitted that an absolute transfer of personal chattels without the delivery of possession, is prima facie evidence of fraud; but it may be asked, does this rule apply to a sale of goods under execution, where a person other than a creditor becomes the purchaser ? Does not the notoriety and publicity of the sale exempt the case from its application ? These questions have been heretofore considered by us. See also, Kidd v. Rawlinson, 2 Boss. & P. Rep 59; 2 Starkie’s Ev. 617 to 622. But if the fact of the defendant in execution continuing in possession under such circumstances, was in law a badge of fraud, would it be sufficient, in the absence of proof of fraud in fact, to establish a combination between the father and son; or if it would, does not his proof of hiring satisfactorily account for the possession? Without stopping to give a special answer to each of these questions, we think there is an entire want of proof to implicate the claimant in the intention to aid the defendant in execution in defrauding his creditors ; and consequently there is no foundation upon which to rest the admissibility of the declarations of the latter.

If the defendant in execution furnished the money with which Ned was paid for, under the purchase at the sheriff’s sale, and was intended to be benefitted, although the bill of sale was made to the claimant, eo nomine, there can. be no pretence that the title acquired by the latter will prevail against the creditors of the defendant. Notwithstanding this is the law in respect to his creditors, the defendant who is a particeps frailáis, could not successfully assert a right to the slave against the claimant. In pari delicto melior est condi-tio passidentis. [5 Binn. Rep. 109; 2 Hill’s S. C. Rep. 488; 7 Johns. Rep. 161; 1 Blackf. Rep. 262.] But if a party make a sale of property for a valuable consideration, which he had acquired through the fraud of his vendor, to a person ignorant of the fraud, such purchaser shall hold the property against all the world, if no paramount liens had attached. If then, Brown made a bona fide exchange with the claimant, of York for Ned, without notice of the fraud, if any, by which the claimant acquired Ned, his title is not only superi- or to that of the defendant in execution, but to his general creditors also. [2 Root’s Rep. 359; 10 Johns. Rep. 185; 12 Pick. Rep. 307; 1 Dev. & Bat. Rep. 29.]

Having determined that the purchase of chattels with the money of a defendant in execution, with a view to his benefit, is fraudulent, as it respects his creditors, we will consider whether, if these chattels are exchanged for others, the substituted property remains in the same condition, and may be seized by the creditors. Assuming the exchange of slaves to have been in good faith, and without notice on the part of Brown of the fraud attributed to the claimant, we have seen that his title to Ned will prevail, not only against the defendant in execution, but also against his creditors. If the claimant acquired a better title to York that he had to Ned, then it would be competent for a fraudulent vendee to defeat the creditors of his vendor, by a mere exchange of the property, and become himself the absolute owner of what he received in its stead. The statement of such a proposition is quite enough to induce its repudiation. If the purchase of Ned was void against the creditors of the defendant in execution, because he was paid for with the money of the latter, upon principles of moral justice, it would seem that York should stand in the same situation; and assuming that the claimant’s purchase had not the effect of divesting the title of the defendant in execution, as it respects the creditors of the latter, and we caunot avoid the conclusion that he should not be permitted to profit by it to their prejudice. If the fraudulent vendee sells or exchanges the subject of his purchase, it is conceded that he is, notwithstanding, accountable to the creditors ; and if he receives in exchange something that is tangible, and susceptible of identification, why should it not be seized under legal process ? This view, we think, was sustained in Marriott & Hardesty, et al. v. Givens, 8 Ala. Rep. 710-11 — a case in equity, and we can conceive of no reason why it should not be recognized at law. If York is more valuable than Ned, and the claimant made them equal by the payment of something else, perhaps a court of equity would give the claimant a lien for his reimbursement pro tanto.

There can be no doubt, that in general, an estate in personal property for a limited period, is subject to levy and sale under execution. Yet it does not necessarily follow, that the interest which one acquires by hiring a slave for a year, or a shorter period, under a contract to pay wages as they are earned, or at some future time, may be thus seized and disposed of. However the law may be upon this point, we do not, in the condition of the case before us, deem it necessary to inquire. The jury found the slave liable to the execution, and assessed his full value, and the term of hiring has most probably expired, so that the question can only be material, (if at all,) on a second trial, with the view to adjudge the payment of costs.

F or the error of the circuit court upon the first point examined, its judgment is reversed, and the cause remanded.