Emery v. Vinall , 26 Me. 295 ( 1846 )

The opinion of the Court was drawn dp by

Whitman C. J.

— The first exception taken to the ruling of the Court, is to the admission of Waldo P. Vinall as a witness. It is urged, that he was incompetent, by reason of interest in the event of the suit. It appears that he was a joint debtor with Lot Vinall in the judgment recovered by the plaintiff, to satisfy which a levy was made upon the demanded premises, as the property of said Lot Vinall: and on which the plaintiff’s claim of title rests ; and that Lot was but a surety for the witness, on the note on which that judgment was rendered. It is contended, that, coming as the witness does, under such circumstances, to disturb the levy, he has an interest in so doing, greater than he will have by avoiding the levy, (and thereby rendering himself liable for the original debt,) equal to the amount of the costs of levy, for which it is contended, if the levy should be upheld, he will be responsible to Lot as his surety. But we are not satisfied that the witness would be so responsible. The express undertaking, on the part of Lot, was, that he would pay the debt, if the witness did not; and there does not appear to have been any thing more than an implied undertaking, on the part of the witness, to repay him the amount, in case he should have paid it. Lot does not appear to have had any express stipulation from the witness to indemnify him from all harm, in case he should be compelled to pay the note by a levy upon his real estate, without which, it is far from being clear that the witness would be answerable for expenses so incurred.

But it is further contended, that, by the Rev. Stat. ch. 94, <§> 23, a creditor, whose levy has been defeated, can have execution renewed, only, for the original judgment, without interest ; and, in argument, it is supposed, that the levy was for the amount of the original judgment, and interest thereon to the time of the levy, for which the witness would be answerable, if the levy should be sustained ; thus showing, that the balance of interest on his part would be in defeating it. But it is not stated in the bill of exceptions, that the levy was for the amount of the original judgment, with interest thereon to the time of the levy. The statefnent is, that the execution was levied on the demanded premises. Whether fully satisfied or not does not appear. It is said, in the bill of exceptions, that the execution and levy may he referred to by either party; by which'it might perhaps have been «made to appear, that it was fully satisfied, including interest to the time of the levy ; but no such reference of either party has been made in our presence ; and from a bill of exceptions we are not authorized to infer any fact not embraced in it; and besides, in case of the avoidance of the levy, the creditor in an action of debt may recover of'the debtor, judgment for the whole amount of the debt levied for, and interest. This exception, therefore, cannot be considered-as well taken. ^

It is next contended, that the witness was incompetent, because he may be answerable to Lot’s estate for what may be recovered by the plaintiff for mesne profits, it being supposed , by the defendant, that the amount so recovered will be recoverable of that estate by the defendant, and afterwards of the witness by the administrator of that estate. But it is not stated in the bill of exceptions, that the defendant holds under Lot Vinall, by deed of warranty, and we have not been referred to the deed itself to see whether it was so, by either of the parties, as provided for in the bill of exceptions ; and of course cannot consider this exception as properly presented for our consideration. Indeed, we might well consider the three grounds of exception to the admissibility of the witness as improperly presented in argument, because it does not appear that they were ever brought distinctly to the notice of the Judge at the trial. Every point intended to be made should be presented to the Judge at the trial explicitly. If that be not done, he cannot be expected to give any opinion upon it; and, if he should not, no exceptions should lie in reference to any such point. It is not enough for a party to say he excepts to the introduction of a witness ; he should explain why and wherefore he so objects.

It is next insisted that Tyler, a witness introduced by the plaintiff, should have been permitted to state what Lot and Odell, another grantor of the defendant, stated to bo the contents of a deed from the latter to the former, of which he, Tyler, took the acknowledgment, in June, 1839. But it does not appear that the plaintiff had ever taken any measures to have that deed produced, or shown any reason for not having produced it; till which no evidence aliunde of its contents could be admissible. The ruling of the Court, therefore, was, in this particular, unexceptionable.

As to the testimony of W. P. Vinall, relative to what took place between him and Temple Emery, in the summer of - 1838, concerning the giving of certain notes, we are unable to. gather from the exceptions, as drawn up, any ground upon ^hich it was properly admissible. It does not appear, that the note, on which judgment was recovered, was either of those notes; but the contrary seems inferable, as that note bore date anterior to that transaction ; and there would seem to have been no reason why any notes, growing out of it, should have been antedated, so as to correspond with the note sued. And, moreover, the witness, who was one of the signers of those notes, and who must have been conusant of any such identity, if any existed, does not appear to have testified to it. Besides, this witness and Lot had both voluntarily suffered the judgment in question to be rendered against them. If there was any ground upon which it could have been pretended, that the note, upon which it was founded, had been paid, it would seem that they could not have failed to have interposed that defence. With an ill grace, therefore, could this witness have stated, that the judgment was recovered upon a note not due. But his testimony does not seem to have had any such tendency ; and was, therefore, so far as can be gathered from the bill of exceptions, wholly irrelevant; and if the Court had finally so informed the jury, or if it could be seen that it could have had no effect upon the minds of the jury, it might not have formed any legitimate ground of exception, as the plaintiff, in the language of our statute, in reference to the allowing of exceptions, might not have been aggrieved by it. But .it may not be important that we should form or express any definite opinion upon this matter, there being other grounds upon which we are satisfied that a new trial must be granted.

There would seem to be no question, but that Lot Yinall owned twenty-five acres of the demanded premises, at the time of the date of the note, on which judgment was recovered ; and the note bears date before Lot conveyed the same twenty-five acres to the defendant; and it was admitted at the trial, that that conveyance was purely voluntary, and without any valuable consideration therefor; and there does not seem to be any thing stated in the bill of exceptions, that should have been considered as having a tendency to show, that the note on which the judgment was rendered had been antedated; especially as W. T. Vinall, the principal in the note, states notI> ing of the kind in his testimony. The jury, nevertheless, were given to understand, that they might find it to have been made after the conveyance of the twenty-five acres to the defendant. This wo are inclined to consider as incorrect. In the absence of testimony, or evidence to the contrary, the note should have been presumed to have been made at the time it bears date.

Again, the jury were instructed, in reference to the twenty-five acre piece, that, if Lot conveyed it to the defendant for the purpose of preventing his creditors from availing themselves of it, and intended and expected to receive a benefit therefrom, and the defendant was aiding him, the demandant should recover. It seems to be unquestionable that the conveyance, referred to in this branch of the instructions, was an absolute gift to the defendant, then a minor son of the grantor, and there is no evidence tending to show that there was any prospect or hope of benefit remaining to him therefrom. It was like numerous other gratuitous gifts, mentioned in the books of reports, in which no benefit was expected to accrue, or intended thereafter to be derived therefrom, by the grantor or donor, which have been adjudged void, when found to be interfering with the rights of creditors. This instruction, therefore, went too far and required of the plaintiff proof of a fact, which could not legally be required in such a case.

Exceptions sustained.

New trial granted.