Petty v. Walker , 10 Ala. 379 ( 1846 )

GOLDTHWAITE, J.

1. It will be seen the issue in this case was, the fraud of the defendants in obtaining their discharge under the bankrupt act, and under the notice given them, the inquiry is confined to the matters therein stated. The first matter stated is, that the defendants did not set out in their schedule, or surrender to the assignee, certain pro - perty described in a deed of trust, executed by Daniel Walker to one Turner, of a particular date, and recorded in the office of the clerk of the county court. Considering this allegation as the assertion that the property covered by this deed was in the possession of the bankrupts when they applied to be discharged, it is evident the deed of trust, and not the copy of it, in the registry, is the matter to be proved. We do not, in the present instance, mean to say that the deed might not, under peculiar circumstances, be proved by the production of a certified copy, but merely to assert that the plaintiff’s specification of fraud is not proveable by the production of the certified copy of the register, without the attempt to produce or account for the original deed. The plaintiff refers to the deed of trust for the description of the property which he asserts the defendant did not surrender. It is true, the description of the property might have been set out in the notification served on the defendants, but as the party has chosen to refer the description to a written document, there is no peculiar hardship in holding him to the proof of his allegation. The defendants are not to be charged with the description set out in the registry, unless the verity of that description is made apparent by their omission to produce, or to account for the original deed of trust when traced to their possession. In point of fact, no attempt seems to have been made to produce this deed, which, in presumption of law, remains with Turner, nor was it shown to be within the control of the defendants. We are clear therefore in the opinion that the certified copy was properly rejected, as no ground was laid for its admission.

2. The certified copies of the deeds conveying certain real estate to the defendants, were not within the issue unless the property was wholly or in part the same as described in the deeds of trust from the defendants to Turner or to Dunn. The identity of the property is not stated or shown by the bill of exceptions, and this alone is a sufficient ground to sustain the rejection of the copies, inasmuch as the original deeds would not be admissible if for property not described in the trust deeds. If however, the property was the same, the deeds were of no use to the party unless he succeeded in getting the trust deeds before the jury, and their subsequent exclusion would be a matter of course. As the deeds were excluded when offered, our decision rests on the reason first mentioned.

3. The remaining and more important question is with respect to the exclusion of the oral evidence of fraud. The point in issue was, that the defendants had concealed, and not surrendered a large sum in cash. To prove this, the plaintiff offered to show, that from two to four years after the discharge of the defendants, that one of them was in possession of property which, from its description, might be inferred to be of considerable value. We think circumstances of this nature, unconnected with other proof, raising the presumption that the property was not acquired by the business or industry of the defendant, were not sufficient to create any presumption of fraudulent concealment of cash, or property, and therefore that the testimony of the only witness speaking to them was properly excluded. The facts of this case are not as those in Hargrove v. Cloud, 8 Ala. Rep. 173, when it was inferrable from the evidence, the bankrupt was in possession of slaves after filing his petition as well as after his discharge, and with reference to which we said, “ the possession of property hy a bankrupt, at the time of his discharge, or immediately after which, by industry he might reasonably have acquired, will not warrant the presumption that he did not make a full surrender of his estate. But when the amount of it is so great as to make it improbable that it was earned by him since the filing of his petition, it devolves on him to show how he became the proprietor of such property whether by inheritance, bequest or purchase, and the onus of relieving himself from the imputation of fraud, in such case is cast upon him who is best acquainted with the origin and nature of his title.” It was also said, that the circumstances to establish fraud, or wilful concealment, must depend more or less on the circumstances of each particular case. The case there did not turn on the question whether the possession of property under particular circumstances, after the decree of bankruptcy, might not be evidence of fraud, but the court refused to say, that possession after the decree, was not admissible to show fraud, and the question put to the jury, was that possession immediately after the decree, was a circumstance to create the presumption of fraud, unless explained by other evidence. We are entirely satisfied that this exposition of the law was correct, but it is a misapprehension to apply what we then said to cases where the possession is not immediate after the decree, or rather after the application; for neither the jury or court can be supposed to know the means within the power of an individual to acquire by his industry or business, the ownership of property. Whenever the possession is not referred to the time of the application, or so recently afterwards, that no business or industry could reasonably have created a fund by which to obtain the property in possession, the onus is upon the defendant, to show how the property was acquired, to rebut the presumption of fraud, which otherwise, and when there are no other circumstances to repel it, may arise. In all other cases, it rests with the plaintiff to create the presumption of fraud, by showing that the business or industry of the defendant could not reasonably furnish the means to acquire the property held by him as owner. In the case before us, no such evidence was before the jury, and therefore, as we have said before, there was nothing to create the presumption of fraudulent concealment of cash at the time of bankruptcy, and the property held by the defendant, for aught which appears, was acquired fairly, and by the honest pursuits of industry. There is no error in the record.

Judgment affirmed.