Lowe v. Dalrymple , 117 Pa. 564 ( 1888 )

Opinion,

Me. Justice Claek :

It is a rule of the law, well settled in a long line of cases» that, where testimony has been given tending to establish a combination to defraud creditors, the declarations of either party, though not made in the presence of the other, are proper-evidence for the jury as affecting both: Gibbs v. Neely, 7 W. 307; Deakers v. Temple, 41 Pa. 234. It is not required that the evidence of collusion shall be conclusive; some of the cases say it is sufficient if it would justify a jury in finding the fact: Rogers v. Hall, 4 W. 359; Confer v. McNeal, 74 Pa. 112. Nor is it necessary that it shall appear by positive proof; it may be shown by such facts and circumstances as warrant a. presumption of its existence: Brinks v. Heise, 84 Pa. 246.

In the case under consideration we think the proof was. ample to justify the admission of Hoffman’s declarations. That Hoffman himself was engaged in' the perpetration of a. gross and glaring fraud upon the Dalrymples is clear; indeed, that seems to be conceded. There was, however, a most manifest haste exhibited by both parties in the delivery of the deed by Hoffman to Lowe. The deed was put into Lowe’s hands in Mr. Olmstead’s office at the time of its execution; Olmstead says the agreement was that it should take effect immediately. Olmstead was to examine the title and search for liens. If the examination was satisfactory, the title was to be considered as having passed at the time of the original delivery, and the deed and the money were to be given over to the parties entitled respectively. Notwithstanding this, however, Lowe retained his grasp upon the money; it was in the hands of his own attorney; he retained the title to the Corry property also pending the investigation of the record, and exhibited some anxiety, nevertheless, by meeting Olmstead at the depot to receive the conveyance back into his own hands. Hoffman, on the contrary, exercised no such precautions. The consideration of the conveyance was $1,000, yet he delivered the deed on the receipt of $300, taking no security whatever for the balance of the purchase money. The Corry property was put into the transaction at $700; the consideration expressed in the conveyance to Raymond was only $350, and the actual consideration only $200. There was no examination of the title, no search for liens, and the deed was not made until the 21st of October; and when it was made, it was made in such way as to cover up and wholly conceal the interest of Hoffman therein. Mr. Olmstead, Lowe’s attorney, prepared this deed on the 21st October, according to the description received from Sanders; and, although a telegram had been placed in his hands from the prothonotary of Erie county on the 18th, giving notice of the entry of the Dalrymple judgments, yet nothing whatever seems to have been said as to this on the 21st. Mr. Lowe says that he thinks he knew nothing about the entry of the Dalrymple judgments until after the 21st.

It may be said that we have stated the facts upon one side only, with the reasonable inferences therefrom, and that these facts were explained in the testimony, taken as a whole; but, in the admissions of Hoffman’s declarations the court was not to weigh the whole evidence. The question for the court was whether there was any testimony which, if believed by the jury, would justify the inference of fraud or collusion.

If the testimony of Mr. Johnston is believed, Lowe stated to him, prior to the first trial, that Hoffman didn’t want him (Lowe) to make the deed for the Corry property at the time of the trade; he said that Hoffman told Mm not to make the deed, that he didn’t want the deed then, that he wanted Lowe to make it at some future time, either to Ms wife or to some other person he might name, and that he (Lowe) agreed to do so. Mr. Johnston says he asked Lowe why Hoffman didn’t want a deed made, and that Lowe replied, “significantly” and “ evasively,” he didn’t know that he knew; but Hoffman had bis own reasons for that. In this conversation nothing was said as to the delay in making the deed for want of a proper description.

We think there was evidence from which the jury might well have found that Lowe was fully cognizant of Hoffman’s fraudulent purpose. An inference might be drawn from a transaction possessing such features that the parties were acting in the furtherance of a common design. With the weight of the evidence we have nothing to do; that was for the jury. The question for us to consider is whether or not there was enough in the case to justify the admission of Hoffman’s declarations.

It is true that the declarations made by Hoffman, which were proven, were made after the execution and delivery of the deed; but the transaction was not yet complete, the possession of the property had not yet been given, and it is perhaps uncertain whether they were not made before the delivery of the deed to Raymond. At all events, the design of the parties had not yet been fully consummated. We think the evidence was properly received, and, therefore,

Judgment is affirmed.