Black v. . Baylees

Ashe, J., after stating the ease. The first exception taken by the defendants was to the testimony of the witness Homesly , as to the representations made to him by Benjamin Justice in regard to the sale of the land. This exception, we think, was properly overruled. The very gist of the action is that Mrs. Justice claimed the land from Benjamin Justice, and 'that he by fraudulent representations prevented a fair competition of bidding at the sale, whereby his wife was enabled to buy the land at a grossly reduced price. The evidence was relevant and very material to the inquiry, and therefore admissible. The second exception to the evidence that the defendant *533 Mrs. Justice gave her husband the money to pay off the bid of Falls for the land, is equally untenable as the last. It was a part of the res gestee, and on that ground was admissible, if no other, but was admissible also on the ground that it was pertinent to the first issue, and as a material circumstance in the charge of fraud as affecting the deed obtained by Mrs. Justice from the sheriff. There was no error in overruling the third exception. Whether the testimony of Falls as to what Mrs. Justice had sworn to on a former trial, between the plaintiff Black and herself and husband, was offered as her admissions simply, or for the purpose of impeaching her testimony, it was equally competent. As admissions; it is always competent to prove what the opposite party has admitted, whether upon oath in a judicial proceeding or in conversation, as for instance, what a party has admitted in answer to a bill in equity, or upon examination before a commissioner in bankruptcy, and what is stated in an affidavit to obtain a certiorari, has been held to be admissible to prove any facts, which, are of a character to be proved by mere admissions or representations. Mus hatt v. Moore, 4 Dev. & Bat., 124; Mason v. McCormick, 85 N. C., 226; 2 Starkie Ev., 222; 1 Greenl. Ev., § 527. And as for the purpose of impeaching the testimony of Mrs. Justice, if it could have been offered for any such purpose before she was examined; it was competent without putting her on her guard, by asking her the preliminary question, whether she had not sworn to the facts proposed to be proved on a former trial. The testimony was material, and when that is the case, it has been held that the preliminary questions need not be propounded before offering the contradicting evidence. The rule as laid down by the more recent decisions of this court, seems to be, that when the testimony or declarations which it is proposed to contradict, are pertinent and material to the pending enquiry, the con *534 tradicting testimony may be offered without any previous intimation, to the party sought to be impeached, of its existence or nature; but if the testimony offered to be contradicted is collateral merely, the answer of the witness is conclusive, except when the collateral matter consists in acts or declarations of the witness, indicating temper, bias, or prejudice, and affecting his credit; in such cases his answers may be disproved, but before it can be done he must be reminded of the substance of the conversation or declaration, the time, place and attending circumstances. Jones v. Jones, 80 N. C., 246; State v. Patterson, 2 Ired., 346; State v. McQueen, 1 Jones, 177; Clark v. Clark, 65 N. C., 655. The only other exception is, to the refusal of His Honor to give the instructions asked. We cannot see how these instructions are pertinent to any of the issues submitted to the jury, or embrace any principle of law applicable to the facts of the case as found by the jury. The jury found the facts that Benjamin Justice was insolvent at the time of the sale by the sheriff — that he was the agent, of his wife in procuring the land to be bid off for her — and' that by his fraudulent representations be prevented a fair competition at the sale, and. thereby enabled his wife to buy his land for a trifling sum compared to its true value. As the agent of Mrs. Justice in conducting the transaction in regard to the purchase of the land, whatever was said or done by Benjamin Justice within the scope of his authority, was evidence against her. McComb v. N. C. Railroad Company, 70 N. C., 178. But aside from that view of the case, the defendant M. J. Justice claimed the land under her husband Benjamin Justice; the false representations made by him to Homesly the agent of Black, the plaintiff, whereby he prevented him from bidding at the sale was a fraud upon his creditors — a fraud- upon Black, who was one of his creditors. And it is held that no one can in equity *535 be permitted to set up a benefit derived through the fraud of another, although he may not have had a personal agency in the imposition. Harriss v. Delamar, 3 Ired. Eq., 219; Goode v. Hawkins, 2 Dev. Eq., 393; Meadows v. Smith, 7 Ired Eq., 7. The principle decided in these cases is decisive of the questions involved in this case. We therefore hold there is no error, and that the judgment of the court below must be affirmed. No error. Affirmed.