Robinson v. Bliss , 121 Mass. 428 ( 1877 )

Ames, J.

The defence relied upon at the trial was that the sale under which the plaintiff claims title to the property was a fraud upon the creditors of Carpenter & Robinson. The defendant as the assignee in bankruptcy of that firm was the representative of those creditors, and was the proper person to set up that defence in their behalf. What he offered to prove was that the bankrupts, who were the mortgagors, had a valuable interest in the mortgaged property, and that the sale of the property by the mortgagees was in connivance with Carpenter & Robinson, for an inadequate consideration, with intent to defraud their creditors, and that the plaintiff had knowledge of the intended fraud, when the property came to his hands. As one link in the chain of evidence as to the alleged fraud, the defendant had a right to show that the debtors had a valuable interest in the property, by proof as to the real amount and character of the incumbrance to which it was subject. The evidence offered was competent and admissible for that purpose. The only exception taken by the plaintiff was to the admission of this evidence; we must assume that whatever other evidence was offered to support the defence was received without objection. The defence charges a fraud in which the original debtors, the holders of the mortgage, and the plaintiff participated. It is well settled that such a fraud may always be proved by. paroi evidence, and, when so proved, it renders inoperative the formal transactions which may have been adopted by the parties in order to carry out the fraudulent purpose. Hills v. Eliot, 12 Mass. 26, 31. Gilson v. Hutchinson, 120 Mass. 27.

Judgment on the ver diet for the defendant.