Williams v. Davis , 1872 Pa. LEXIS 74 ( 1872 )

The opinion of the court was delivered July, 3d 1872, by

Williams, J.

There was no error in the admission of Shadraeh Davis as a witness on the- part of the defendants. Though a party to the record he was clearly competent under the provisions of the Act of 15th April, 1869. He did not claim any interest in the property as heir of his deceased father, or otherwise, and was therefore not within the exception to the act.

The declarations of Robert T. Davis in the spring of 1857, while occupying the property in suit, that he was then engaged in business at Eagle Hill with Joseph Johnson and John Waugh, offered for the purpose of showing that he was at the time one of the firm of Johnson & Waugh, were properly excluded. They were clearly irrelevant. Of what avail would it have been to the plaintiff to show that Davis was a member of the firm of Johnson & Waugh? It was not proposed to follow the offer with evidence tending to show that the firm had contracted debts for which Davis was responsible, nor by any other evidence that made the offer relevant. The judgments in favor of Wintersteen and Siebert were conclusive against Davis, and could not be impeached in this action, and it was not competent for the plaintiff to contradict the testimony of his own witness, Joseph Johnson. In no aspect of the case, then, were the declarations of Davis admissible, even if they tended to prove that he was a member of the firm of Johnson & Waugh.

Nor was there any error in rejecting the plaintiff’s second offer. If it tended to show, as alleged, that Davis paid for the property purchased of Titus with the money belonging to the firm of which he was a member, and that he was indebted to his co-partners Lloyd & Reese for the amount, and also for their proportion of the residue of the money with which he returned from California when he bought the property in controversy; then it was evidence in chief, and it was no error to reject it when offered as rebutting evidence.

The court rightly refused to charge as requested in the plaintiff’s first point. The unpaid purchase-money, secured by a mortgage on the property conveyed to the wife, was not such a debt as would render the conveyance void as against subsequent creditors. It could not have been intended to hinder, delay and defraud the vendor in the collection of the purchase-money, for the wife took the land subject to the lien of the mortgage given to secure its payment.

Nor was there any error in answering the plaintiff’s second, third and fifth points in the negative. They are all based on the principle that the grantor’s intention, at the time of making a voluntary conveyance, to engage in business that may be hazardous, or in which indebtedness may be incurred, is the test of its validity, whether such intention is subsequently fulfilled or not; and, therefore, if Davis at the time he conveyed the property to his wife intended to return to California and engage in gold mining, as he had done before, in which business indebtedness might be contracted, or to enter into any hazardous business, the conveyance to his wife was void as against the plaintiff, whether he returned to California, or engaged in such hazardous business or not. It is undoubtedly true that there can he no fraud without a dishonest intent. But is dishonest intention the sole element of fraud ? If it is, then as suggested in Smith v. Smith, Murphy & Co., 9 Harris 371, it may be made out without proof of a single overt fraudulent act. And if none of its elements consist of an overt act, then the law requires no evidence of an overt act to establish it. But fraud does not consist in mere intention, but in intention carried out by hurtful acts. It consists of conduct that operates prejudicially on the rights of others, and is so intended : Bunn, Raiguel & Co. v. Ahl, 5 Casey 390. But mere intention, if not carried out, cannot work injury to the rights of others. What possible harm could Davis’s intention to return to California and engage in the business of gold mining, however hazardous it might be, do the plaintiff, so long as it was not carried into effect ? And if he had returned and contracted debts in the prosecution of the business, it does not follow that the conveyance to his wife would be invalid as against subsequent creditors, unless it was his purpose in making it to withdraw the property from their reach. A mere expectation of future indebtedness, or even an intent to contract debts, if it be only an intent, not coupled with a purpose to convey the property in order to keep it from being reached by the creditors, will not, as it would seem, render a voluntary deed invalid as against such future creditors : Snyder v. Christ, 3 Wright 507. The court below, therefore, properly refused to instruct the jury as requested in the plaintiff’s points.

We come now to the answers to the defendants’ points, which are complained of as erroneous. The defendants’ first point presented a question of fact and not of law, and for this reason the court might have declined to answer it. But there was no error in affirming it. Taking the affirmance in connection with the answer to the plaintiff’s first point, the jury must have understood the. court as saying that no such indebtedness of Davis had been shown as would avoid the conveyance to his wife.

Nor do vfe see that the plaintiff has had any good reason to complain of the answer to the defendants’ second point. The court was there asked to charge that under the evidence in this case there is no proof that Davis, at the time of the conveyance, contemplated going into any business of a hazardous character, or that required him to obtain credit. And, in answer thereto, the learned judge told the jury that Davis contemplated going to California, as the evidence shows, at the time the conveyance was made to his wife. And if he intended to go to California and there go into mining gold, and such business would be hazardous, then against such debts the conveyance would be void. Whether gold mining was such business as would be likely to create debts, and be termed hazardous, was a question which the court left to the jury with the instruction that if it was, theq this point is negatived, and the verdict should be for the plaintiff; if not hazardous, as before explained, then the point is affirmed. We think the defendants had more reason to complain of this instruction than the plaintiff, for it' made the validity of Davis’s conveyance wholly dependent upon the character of the business in which he intended to engage, regardless of the fact whether or not it was his purpose in making the conveyance to withdraw the property from the reach of the debts which he might contract. It is undoubtedly true, where the grantor enters into a new and hazardous business about the time the conveyance is made, or contracts large debts immediately thereafter, that it may be fairly inferred that it was his motive in making the conveyance to withdraw the property from the reach of the debts subsequently incurred. But this is a question of fact, upon which the jury should be left to pass in determining the character of the conveyance. If the answer of the court was faulty in this respect, and not altogether consistent with the answers previously given to the plaintiff’s points, the error did the plaintiff no possible harm, for it was more favorable to him than he had any right to expect. But the omission was supplied in the general charge in which the jury were instructed that “ if Davis was solvent at the time he made the conveyance to a trustee to convey to his wife, he had a right to settle a reasonable amount of property upon her, for her support, if at the time he made the conveyance he did not contemplate going into business in which he might contract debts. The fact that he did go into business subsequently would not invalidate the conveyance, unless the conveyance was made at a time when Davis contemplated going into some business which might be termed hazardous, and in which he might incur debts ; and to withdraw the estate from such indebtedness ; in the latter case the conveyance would be void as against the debts of Davis incurred subsequent to the conveyance.” Under these instructions the jury must have found that Davis, when he made the conveyance, did not intend to go into any business of a hazardous nature and to withdraw the property from the reach of the debts incurred in its prosecution. As there was no substantial error in the charge, and as there was evidence to justify the finding of the jury, the judgment must be affirmed.

Judgment affirmed.