May v. Barnard , 20 Ala. 200 ( 1852 )

LIGON, J.

This bill is filed by a judgment creditor against bis debtor and one who, as be charges, fraudulently bolds property, on a secret trust in favor of tbe debtor.

1. It charges that tbe defendant, May, claims to bold under a deed from bis co-defendant to himself, dated 17th August, 1840, and that be derives bis title from tbis deed. Tbis charge is denied in express terms by May, and virtually by Grizzle. As these denials of tbe answers are responsive to tbe bill, and as there is no testimony to disprove them, they must be taken as evidence for tbe defendants, and as establishing tbe fact that tbe defendant May does not bold tbe slaves, and other property sought to be charged by tbe bill, tinder tbe deed from bis co-defendant Grizzle. Botb tbe defendants are interrogated on tbis point in tbe complainant’s bill, and tbe rule is, that if an answer be responsive to a statement or a charge in tbe bill, or an interrogatory authorized by either, it is evidence for tbe defendant, and must prevail, unless it is disproved by two witnesses, or one witb strong corroborating circumstances. Fenno, et al. v. Sayre & Converse, 3 Ala. Rep. 458; Br. Bank at Huntsville, v. Marshall, 4 Ala. Rep. 60.

Tbis view of tbe pleadings relieves us from inquiring into tbe character of tbe transaction out of which originated tbe :.deed of 17th August, 1840; as well as from pronouncing on tbe validity or invalidity of that instrument.

2, Tbe bill also charges, that the confession of judgment ;before tbe justice of tbe peace by Grizzle was fraudulent, and ■that some of tbe debts, on which such judgments were confessed, bad no real existence, but were simulated and fictitious. On tbis charge also, a direct interrogatory in tbe bill is founded, and both defendants are called upon to answer. They both answer, that the debts on which those judgments are based were bona fide, and May answers that they were confessed by Grizzle, so far as he knows or believes, for the purpose of preferring these creditors over others, on whose debts Grizzle was only security. Here, again, the rule heretofore laid down may be properly invoked, and as there is no proof to override the denials of the answer, they must be regarded as truc, and be allowed to establish the fairness of this transaction. But on this bill, with its present allegations, to which the creditors of Grizzle, who are plaintiffs in those judgments, are not parties, the complainants would not be allowed to inquire into these judgments with the view of impeaching, and setting them aside, for the fraud of Grizzle in confessing them, even if that could be established; since, if the debts were bona fide, and the creditors did not participate in the fraudulent intent, their rights would not be affected by his fraud.

The only bearing it’ could have in a controversy between the present parties, if it existed at all, would be, by connecting May with it, to use it as a fact from which, with others, fraud in the sale under the judgments might be presumed ; but its force, in this respect, is entirely broken, by the positive responsive denial of its existence in the answer of May, and the total absence of all proof to establish it.

But it is insisted that, the connection between Grizzle and May, in the perpetration of the several fraudulent practices charged in the bill, is so intimate, that the admissions in the answer of Grizzle should be received as evidence against May. The well established rule in chancery practice is, that the answer of one defendant cannot be read as evidence against his co-defendant. Gresley’s Equity Ev. 24. The exceptions are, where there is an identity of interest, as where all the defendants are partners in the same transaction; and where the defendant whose answer is read, and the defendant sought to be charged, are privies in estate. Gresley Eq. Ev. 25 and 322. There may be other exceptions, but they must be all founded on the same rule which governs those above enumerated, and which, cannot apply to the case before us. May is in nowise connected with the fraud imputed to Grizzle, except by the unsupported allegations of the bill, and the equally unsupported answer of Grizzle; he is no partner, and not claiming under the deed from Grizzle, he is not his privy in estate; and, we apprehend, it would be difficult to find a princple, or an adjudged case, which would, under such circumstances, allow the reading of the answer of either of these defendants against the other. The case of Abney v. Kingsland, 10 Ala. Rep. 361, and Van Reinsdyke v. Kane, 1 Gall. 620, and the principle laid down in 1 Greenleaf Ev. 210, § 178, to which we have been referred by the defendant’s solicitor, fall far short of doing so.

2. We come now to consider that part of the case which relates to the purchase of the slaves, and other property, by May, at the sale made by the constable, under which alone he sets up his title. Here the answers of the two defendants are essentially at variance. Grizzle answers that May purchased for his benefit, that the ownership of the slaves was nominally to be in May, while he was to take the actual management and control of them, and out of the proceeds of their labor to refund to May the money advanced in the purchase, with lawful interest, and when this was done he was to become again the absolute owner of the propersy. He also admits facts, transpiring at the time ot the sale, which, taken in connection with what he states concerning his agreement with May about the purchase, would go far to establish a purpose on his part, in which May was a participant, to defraud his creditors. But May denies, in terms the most clear and explicit, all the allegations in the bill of fraud in this sale. We have seen that the answer of Grizzle is not evidence against May, and this part of the complainant’s case, like those we have been considering, is wholly unsustained by proof. May is directly called on by the bill to discover and show his title to the property sought to be charged, and in his answer he asserts that he purchased it in open market, at constable’s sale, fairly, and for a full consideration. This is responsive matter, and uneontradicted as it is, by any proof on the part of the complainant, it must be regarded as true, and is evidence of his title. Fenno v. Sayre & Converse, 3 Ala. Rep. 458.

4-. The bill also charges, that May got possession of, and applied to his own nse, the crop of corn and cotton raised by Grizzle in the year 1840, and calls on him to show and set •forth, what became of the proceeds, and to discover the amount. To this he answers that the nett proceeds of the corn were two hundred dollars, and of the cotton twelve hundred and fifty dollars; but further 'answering, to that part of the bill which calls on him to show how he had appropriated the means arising from this source, he sets forth an account of his own against Grizzle, for money paid on his (G.’s) account, for labor in saving and preparing the cotton for market, for expenses attending its shipment and sale, for provisions furnished Grizzle and family, and for slave hire, which greatly exceeds the amount to which the latter would have been entitled out of the proceeds of said crop; to the payment of which he alleges, he applied the money so received by him. To this the complainant opposes no proof whatever, and under the rule laid down by this court, in the case of Powell v. Powell, 7 Ala. Rep. 582, this is responsive matter, and prima facie evidence of the state of accounts between the parties. . Such being the case, the complainant is entitled to np decree- on this part of his bill.

Prom what has been said, it is manifest that the decree of the chanceUpr must be reversed; and as there is nothing in the record to justify us in concluding that a different result would spring 'from remanding the cause, the bill must be here dismissed, without prejudice, the defendant in error paying the costs of this court, and of the Court of Chancery.