Enders & Hynes v. Swayne ( 1839 )

Chief Justice Robertson

delivered the Opinion of the Court.

Considerins the peculiar nature and great number of facts exhibited in this case, it seems to this Court, that they might have been presented in such a manner as to have left no difficulty in determining as to, either the alleged resulting trust, or fraud.

But, in the preparation of the case, some of the most important and characteristic facts have been permitted to appear in a very vague and indeterminate aspect, And therefore, this Court has been subjected to some embarrassment in deducing from the entire record before it, a proper and satisfactory judicial conclusion concerning the matters litigated.

After a careful analysis, however, of all the circumstances, we are strongly inclined to think, that they conduce decidedly to the conclusion' that, at least, some of the estate pursued by the bill, should be subjected to the execution of the complainants.

1. Though John Swayne had been doing business extensively, and had bought a large assortment of merchandize, and much real estate, his whole stock of goods and movable property appear to have suddenly vanished, without any account of the cause or manner of their disappearance; and, in the space of a few months after he had cause to apprehend a suit by one of his many creditors, an execution against him was returned “ no property.”

2. It would seem that the legal title to all the real estate bought by John Swayne, and which was various and apparently extensive, passed, within a few months, into the hands of his brother Doctor Joshua Swayne, a young and single man, then but recently settled at Columbus.

3. j\j0 title passed to Joshua Swayne until the 1st of March, 1834, when John Swayne, as we are bound to infer, had just ascertained that, in consequence of Gray-ham’s failure to remit to New York the funds deposited with him for paying the said John’s mercantile creditors in that city, his credit was so far impaired as to force him to wind up his business, and either appropriate his property to- the payment of his debts, or otherwise dispose of it. And though his answer claims credit for a peculiar anxiety to pay the debt due to the assignors of the complainants, and shows, we think, an undoubted ability to do so, yet it shows, also, that he ascribed to their refusal to indulge him longer, that eventful crisis in his affairs which eventuated in his ceasing to do business as a merchant, and his getting rid of all his estate, without either paying the complainants and other creditors, or being subjected to the perils of a sale of one particle of his property under execution.

4. It would seem that the first conveyance to Joshua Swayne (to wit, of the mill property) included all the real estate to which John Swayne then held a legal title. That conveyance was made at a suspicious and trying moment, and when the conveyee was in the city of New York; and it recites a consideration of five thousand six hundred dollars,, when the answers aver that the true consideration was only three thousand nine hundred dollars; and the strange fact, that the vendor, in the absence of the vendee, inserted and acknowledged a larger consideration than had been given, has not been explained; and moreover, the mills seemed to be considered unproductive property; and therefore, it is somewhat singular, that Doctor Joshua Swayne should desire to own them, and should select them in payment of a bona fide debt due to him, and which might have been otherwise paid or secured.

5. The answers insist that a portion of the alleged consideration of three thousand nine hundred dollars, (but what portion we are not told,) was an old debt said to have been due from John to Joshua, for money loaned to the former, by the guardian of the latter, about eighteen years before. But how much was thus due, where loaned, why it was never before paid, how Joshua became entitled to the money, where his guardian resided, whether John had given a bond for the money, or what had become of the bond, are all facts unestablished in the record. And John’s answer, not only does not intimate how much of that debt was included in the consideration of three thousand nine hundred dollars, but he leaves the amount of the debt itself a blank! In such a case, and under such circumstances as had appeared conducing to a strong suspicion of fraud, it would have been but natural that parties, insisting on such a consideration as the guardian’s old and indefinite loan, should have proved the facts necessary to establish the existence and amount of that alleged indebtedness; and the failure to do so, tends strongly to the impeachment of the deed of March, 1834.

6. Although the answers insist that John was largely indebted to Joshua, for money loaned at various times, and although- two witnesses testify to the same effect in general terms, yet no account has been exhibited, and the answers themselves do not even intimate the particular items or the aggregate amount; nor suggest how much of it was applied as the consideration of one single conveyance to Joshua. Can it be presumed that no account was kept, or that neither John nor Joshua knew the state of the account, or the precise manner in which it had been adjusted? Or must we believe that the omission to state or exhibit any account or even to suggest any particulars in the answers, was the result of ignorance, carelessness or accident? Such an omission in such a case, must be deemed very unfavorable to the defence relied on in the answers, and strongly indicative of collusion and fabrication.

7. John Swayne does not, in his answer, respond at all to the question whether he had not money enough to pay his debts, nor directly to the question whether moneys, said to have been advanced to him by Joshua, had not been refunded. And if he had money enough to pay his debts, that fact alone would tend, in some degree, to the conclusion that the conveyance from John to Joshua, was colorable, or under a secret trust.

The foregoing are the principal facts conducing to establish fraud or a general trust. And they are, in our opinion, too strong to be overruled, or even counterbalanced, by any allowable inference from the vague evidence as to advances made by Joshua to John Swayne, unexplained by the answers, and unapplied to any of the conveyances, either by the answers or by the proof.

"We are therefore of the opinion that, so far as the complainants, as judgment creditors of John Swayne, are concerned, the conveyance by the said John to Joshua Swayne, of March the 1st, 1834, should be deemed not to have exempted the estate so conveyed from execution upon the judgment against John.

We are also of the opinion, that the hundred and fifty acres of land bought from Cates by John Swayne, and paid for with his property, should be considered as held in trust for John, or for his creditors; for even if the conveyance of that hundred and fifty acres to Joshua was not fraudulent in fact, still as there is no proof that Joshua ever refunded to John the consideration which the latter had paid to Cates, the trust resulting to John from the payment by him, remains unrebutted.

But, as to the lots conveyed to Joshua Swayne by 'Tipton, by Brown, by Buckner, Cates and Taylor, by Gatlin, by Peak, by Curd, and by the trustees of Columbus, we are of the opinion that the bill and exhibits do not establish such facts as should subject any of those "lots in this case. As to many of them, the bill contains no definite or tangible allegation; and as to others, the proof is so slight as to the payment of the consideration "by John Swayne, and the amount which seems to have "been certainly paid by him, was so small, that we are disposed to think a.resulting trust is not sufficiently established, and that the general proof as to advances made by Joshua to John, should counteract any deduction of- trust or fraud, and leave the matter in great doubt at least.

We feel therefore indisposed to a reversal of the decree, so far as it dismissed the bill as to all the property except that contained in the deed from John to Joshua Swayne, of March the 1st, 1834, and in the conveyance from Cates to Joshua Swayne, of the hundred and fifty acres bought and paid for by John Swayne.

[By Messrs. Crittenden & Cates.]

Wherefore, the decree is reversed, and the cause remanded for another decree conformable with this opinion.