Daniel & Strauss v. Vaccaro

OPINION.

At common law no creditor, who had not acquired a lien, could maintain an action against one who had combined and colluded with his debtor. Assumpsit would not lie, for there is neither an express pomise to pay the creditor’s debt, nor any privity from which the law will imply such a promise. Case could not be supported, because the creditor having no special title in or to his debtor’s property, the damages are too contingent and remote.

1. TTRAIFD-ULENT Conveyance: Action for, ■under sec. 1376 Gant.t’s Digest. This action then must be bottomed on the following provisions of Gantt’s Digest:

“Sec. 1376. Every person who shall be a party to any conveyance or assignment of any real estate, or interest. in any real estate, goods or choses in action, or any rents or-profits issuing therefrom, or to any charge upon such estate, with intent to defraud any prior or subsequent purchaser, or to hinder, delay or defraud creditors or other-persons, shall be deemed guilty of a misdemeanor, and on conviction, shall be tinea in any sum not less than five hundred dollars.

“Sec. 1378. Any person who shall violate any of the provisions of the two last preceding sections shall, in addition to the fine to be assessed in the criminal prosecution,, pay to every person so by him injured or defrauded, by any of the means therein mentioned, double the damages sustained by him, to be recovered by proper action.”

. convieg°*yneces' It is argued that no action lies on this statute before conviction. But the statute does not make the right of tion dependant on the previous conviction of the grantee in a fraudulent conveyance. And the legal analogies are all against this proposition. At common law, a party could not sue for damages arising out of a felony, until after a trial upon a criminal prosecution; “the excellent policy of; that law preventing the person injured by the trespass from' seeking his own redress, until it should be first ascertained, and determined by the proper tribunal what the justice of the state requires of the accused for the deed. Otherwise-it was supposed that persons injured would often obtain, compensation for such trespasses, upon an agreement not-to complain of the public wiong; and reparation would be made for the civil injury to escape the justice of the country.” But the rule never extended to misdemeanors ; and. even in regard to felonies our legislature has changed it. The civil injury is no longer merged in the felony. Sec.. 4765 of Gantt’s Digest; Brunson v. Martin, 17 Ark., 270.

Wherever a statute gives a right, the party by consequence shall have his action to enforce it. So that the novelty of the particular complaint is no objection, provided an injury cognizable by law be shown to have been inflicted on the plaintiffs. They had no control over the •criminal prosecution and are not responsible for its non-in■stitution or its miscarriage.

We do not regard the statute which gives the right of action as penal in its character, but as remedial. The action provided for is not a qui tarn action to recover a penalty for being a party to a fraudulent conveyance, like the Vermont •statute which is construed in Slack v. Gibbs, 14 Vt., 357; Colgate v. Hill, 20 Id., 56, and Aiken v. Peck, 22 Id., 255. But it more resembles the English statute giving double damages to a landlord against a stranger for assisting a tenant to carry off and conceal his goods, whereby the plaintiff was prevented from dis-training for his rent; or the Maine statute which declares that any person who assists a debtor to defraud his creditor by making a fraudulent concealment or transfer of his property shall be answerable under a special action on the case, to any creditor, in double the amount so fraudulently concealed or transferred. The two statutes last mentioned have been decided to be purely remedial. Stanton v. Whardon, 9 Price. 301 ; Quinby v. Carter, 20 Me., 218; Philbrook v. Handley, 57 Id., 53; Thacher v. Jones, 31 Id., 528 ; Frahock v. Patten, 38 Id., 103.

Reed v. Northfield, 13 Pick. 94, was an action against •a town for an injury to the plaintiff, caused by a defect in a highway, under a statute giving double damages. Shaw, •C. J., in delivering the opinion of the court, said : “The action is purely remedial and has none of the characteristics •of a penal prosecution. All damages for neglect or breach ■of duty operate to a certain extent as punishment, but the ■distinction is, that a penal action is prosecuted for the purpose of punishment, and to deter others from offending in like manner. Here the plaintiff sets out the liability of the town to repair, and an injury to himself from a failure to perform that duty. The law gives him enhanced damages ; but they are recoverable to his own use, and in form and substance the suit calls for indemnity.” See also Suffolk Bank v. Worcester Bank, 5 Pick. 106.

SAME\ f’i NecessaJ-'y proof-The next point is : What proof must the creditor to entitle him to recover in an action brought upon this statute? It devolves upon him to show: 1, that he has just debt; 2, that his debtor has fraudulently transferred his property to the defendant; 3, that that property was liable to be taken on execution or attachment; 4, that the defendant has knowingly aided the debtor to defeat the right of his creditors; and 5, the amount of the plaintiff s damages. Quinby v. Carter, supra.

'!-uFeae?t ance?m palfciesUpon the first proposition the present case presents no difficulty ; but upon the remainder the evidence is wholly insufficieut. Granting that theEmericks are now insolvent and that the plaintiffs are unable to collect their debt,there is no proof of fraud in the concoction of the transfer and none of any circumstances from which fraud might be inferred. A conveyance is not necessarily fraudulent because its effect is to hinder and delay creditors, unless it was a contrivance for that purpose and the grantee participated in the design. And the difficulty in demonstrating the intention from the overt acts and conduct of the parties furnishes no reason for courts to assume that a transaction is infected with fraud from vague suspicions of its nature and character, unassisted and uncrontrolled by any certain or fixed rules. Hempstead v. Johnson, 18 Ark., 123, Bump on Fraud. Con., 605.

The fact that the price paid approximated the value of property is a potent argument of the good faith of the parties. Here was no gross inadequacy of consideration, imparting to the sale a dubious aspect. Daniel & Strauss did not buy it for a song, but paid probably as much as if it ■had been sold under the hammer by virtue of their deeds of ’trust. They are not proved to have any knowledge of the ■plaintiff’s claim or of any other debt due by the Emerichs, nor to have had or exercised any undue influence over them. And they had the right to make the best bargain they could ■for themselves, without considering what effect it might have on others. The Emerichs probkbly assented to the arrangement'because it was the best they could make. They were at the mercy of Daniel & Strauss.

It is unnecessary to determine whether the transaction was a conditional sale or a mortgage. We incline to the opinion that it was the former, and in giving Emerich a ■limited time within which to repurchase, time was made of the essence of the contract. But whether it was the one or ■the other, the circumstance that the Emerichs were allowed to retain ¡possession for the rest of the year, does not constitute fraud, if the transaction was in other respects unobjectionable. The instruments of transfer, were placed of record. Feild v. Simco, 7 Ark., 269 ; Stone v. Waggoner, 8 Id., 204.

But we will not pursue the subject. This is a case of novel impression in this State. It occurs to us that in actions based on this statute, great embarrassment will be felt both by courts and juries in arriving at the extent of the injury and quantum of damages. For, suppose it to be proved that the debtor has conveyed away his property, without receiving any equivalent for it, with intent to evade the payment of his debts, and that the creditor has no other means of obtaining payment; what is the measure of damages? Not the whole amount of his debt, for that might oxceed the value of the property conveyed; nor yet the value of the property, for to that he has no better claim than other creditors. The only loss which could be shown would be that he has been deprived of a chance or possibility ■of being paid out of that property. The loss would not even foe so great as this, for in many cases he might still reach the property in the hands of a fraudulent holder. The value of such a chance is not readily to be estimated by any •data or table that we are acquainted with. Bump on Fraud, Conv., 528.

Reversed and remanded for a new trial.