Paris v. DuPre , 17 S.C. 282 ( 1882 )

The opinion of the court was delivered by Me. Justice Fbasee.

This was an action for the delivery of certain goods and chattels and for damages for the wrongful taking and detention of the same, the plaintiff alleging lawful possession in himself, and the defendant, after denying each and every allegation of the complaint, setting up a levy under an attachment and an execution in favor of Clayton & Webb v. Wm. E. Walker, under whom plaintiff claimed. Under the instructions of the presiding judge as to the law the jury found a verdict for the defendant, and from the judgment entered upon this verdict an appeal has been taken to this court. Several questions were raised on the Circuit, and have been discussed in the argument before this court, which do not arise on the exceptions and cannot be considered.

The 1st, 2d, and 4th exceptions are substantially the same: that, neither fraud nor facts tending to show fraud in the plaintiff’s title from Wm. E. Walker having been alleged by defendant, it was not competent to introduce evidence to show it. The complaint in this case alleges title in the usual way, that the plaintiff was “.lawfully possessed” of the property in dispute ; and the general denial puts in issue every fact which goes to make' up that title — the execution, the consideration, and good faith of the transfer of the property to him. A defence which admits the plaintiff’s claim and seeks to avoid it rnu'st be set up in the answer distinctly and with due particularity, but this is not necessary where the defence denies in toto the plaintiff’s claim.

The plaintiff in opening his case was bound only to show that the property was taken from his possession by the defendant, its value, and damages, if any. The burden of proof was then on the defendant, but as soon as he showed that he had seized the property by virtue of process against W. E. "Walker, at the suit of a creditor, and that W. E. Walker had purchased and been the owner of it, the burden was again thrown on the plaintiff to show a valid transfer to himself. At this point, upon whomsoever may have been the burden of proof as to bona-fide consideration, it was a mere "question of evidence as to the validity of the transfer from Walker to plaintiff, R. J. Paris. See Lyles & Bolles, 8 S. C. 263. This court, therefore, holds that the evidence in the case, which tended to show that the transfer of the property from Walker to plaintiff was fraudulent, was properly admitted.

The 3d exception is as follows: “Because the presiding judge erred in allowing the declarations of Wm. E. Walker not made in the presence of plaintiff Reuben J. Paris to be offered in evidence.”

In this case there was evidence “that Wm. E. Walker arrived at Ninety-Six on the railroad train about 12 o’clock December 10, 1878 ; that said Walker and Paris went to the house of Richardson (an attorney-at-law) after supper at night to get him to prepare a bill of sale from Walker to Paris of his interest in the goods; that no money passed on the occasion, and that Walker left Ninety-Six on a freight train, as plaintiff testified, about 8 o’clock p.m.” The deed of assignment bears this date and recites payment in full of $607 at and before the delivery of the deed. It is also in proof that certain barrels of whiskey, in which it seems these parties were dealing, had been shipped to Walker at Spartanburg, and, without being taken from the depot, were reshipped to Ninety-Six to Paris, and that many of the barrels and packages seized by the defendant had the mark “Walker” erased and Paris put on them. Plaintiff claims that they were partners.

Where a consideration between the assignor and assignee, with a view to perpetuate a fraud on creditors by means of the assignment (which fraud has not then been perfected), is previously established, the declarations of the assignor will be evidence against the assignee to the fullest extent, though made after the assignment. Cuyler v. McCartney, 33 Barb. 165. There was at least sufficient evidence of collusion between Walker and Paris to allow these statements, whether before or after the date of the assignment, to go to the jury.

The only statement of Walker after the assignment was one made before O. P. Wafford, referee in another cause, and seems to have been in presence of Paris, and if it were not so, is of such a character as would not have prejudiced the plaintiff ; and for this reason its admission would be no ground for a new trial.

The 5th exception is too general to require any judgment of this court upon it.

The necessity for a return of nulla bona on an execution before proceeding against personal property fraudulently disposed of by a debtor has not been presented by the exceptions in this case. It seems, however, to have been the practice in this state in such case to levy and sell as though no such sale had been made. Motte v. Aiken, 2 Spears, 115; De Millen v. McAlliley, 2 McM. 499; Force v. Aiken, 4 Rich. 133.

It is therefore ordered and adjudged that the exceptions be overruled, -the judgment of the Circuit Court affirmed, and the appeal dismissed.