Bates v. Ableman , 13 Wis. 644 ( 1860 )

By the Court,

PAINE, J.

The first question presented by ^ exceptions is, whether the testimony of Cameron, as to the statements made by Seymour after the assignment, as to his intention in mating it, should have been admitted. "We think it was properly excluded. The statements of Seymour were not those of a party to the suit, and were not admissible on that ground. They were not admissions by a vendor with respect to his title, made before he had parted with it. They were no part of the res gestae. ~We can therefore see no principle of evidence upon which they could be admitted. It is undoubtedly true, that where the intent of a party to a sale is in issue, his statements at the time and so connected with the transaction as to be a part of the res gestee, are competent evidence to show such intent, even though the person is not a party to the suit. But where they are not so connected with the transaction, but are offered as -mere admissions by him after it occurred, he not being a party to the suit, they are no more competent for that purpose than they would be to prove any other material fact. They are then mere hearsay. And although a person may be presumed to know very well what his intention was, yet that fact does not make -his mere statements, not under oath, proper evidence to prove it, any more than any other material fact, equally well known to a witness, could be proved in the same way.

The next exception was to the refusal of the court below to instruct the jury, that if they found “ that Asa N. Seymour, the assignor, believed himself to be solvent and able to pay all his debts, at the time he made the assignment, and made it under the expectation and belief that there would be a surplus, then and in that case the assignment was fraudulent and void, as to the creditors of the assignor.” Now it may well be said that the fact in question might be very strong evidence from which the jury could infer an intent to hinder and delay creditors by making an assignment. Tbe reasoning of tbe vice chancellor in Van Nest vs. Yoe, 1 Sandf. Ch. R., 4, showing that snob would be its effect, is tainly very forcible. Yet it goes only to its effect as evidence. And it is obvious that even this effect might be strong or weak, according to tbe conclusion which it tended to produce in connection with all tbe other evidence, as to whether tbe assignee acted with reference to saving the surplus for himself, or for the benefit of all his creditors, by causing the property to be fairly applied for all, instead of being sacrificed by the rapacity of a few. It is conceived that the latter intention is not inconsistent with the belief that his property would pay all his debts, or even leave a trifling surplus. And such a mere belief is therefore by no means conclusive evidence of the fraudulent intent which is to avoid the assignment. Ogden vs. Peters, 15 Barb., 562. The instruction as drawn is not inconsistent with the fact, that the assignor might have believed that a surplus of only the most trifling character would have remained, and that without an assignment, his property would be so sacrificed that large portion of his debts would have remained unpaid. And yet, such a belief would furnish very slight, if any, evidence of a fraudulent intent.

But the answer to the exception is, that the instruction, as asked, submitted to the jury only the question of the assign- or’s belief as to his solvency, and from this, if found, derived absolutely the conclusion that the assignment was invalid, without submitting to them at all the question of intent. The latter was the material question for the jury, and the assignor’s belief was only evidence proper for them to consider in determining it. Although the defendants, therefore, might have been entitled to a proper instruction, submitting such belief as evidence from which the fraudulent intent might be inferred, they were not entitled to the one asked, but it was properly refused.

The only remaining question is, whether the fact that the assignor had real estate not conveyed to the assignee, rendered the assignment void. We are satisfied that it did not. The answer to this objection is, that if the property is not conveyed, it is left as it was before, liable to seizure by the creditors. They are therefore not injured by its being reserved. Burrill on Assignment, pp. 4, 87, 88, chapter 10. Carpenter vs. Underwood, 19 N. Y., 520.

1861, May 15.

On the whole, we see no error, and the judgment is affirmed, with costs.