Thorpe v. . Beavans, Trustee .

RodmaN, J. I. It became a question in the cause whether the purchase of the land in controversy by McDaniel, through his agent Hardie, was fraudulent or not, which involved the question by whose money the price bid had been paid. The plaintiff who alleged that the sale was fraudulent, introduced Hardie as a witness, and asked him if he, at the time of the sale, was not the agent of Gunter. The witness replied in substance, that he was not, but that he was the agent of McDaniel. On cross examination, the defendant asked the witness with whose money the bids for McDaniel were paid. The plaintiff objected to the question as bringing out matter new to the examination in chief, and insisted that defendant could only ask the question by making the witness his own. The Judge overruled the exception and permitted the defendant to proceed in his examination. To this the plaintiff excepted. His Honor, howmver, afterwards allowed the plaintiff to re-examine the witness as an adverse one; that is, as we infer, to ask him leading questions. At a later stage of the case it appears that the Judge permitted the defendant to introduce witnesses to support the character of Hardie. There is some difference in the authorities as to whether a party is confined on a cross-examination to the matter proved in chief, or may extract from the witness new matter material *249 for his case, and whether if he does so he thereby makes the witness his own. 1 Greenl. Ev., sec. '445. We think it is not necessary for ns to express any opinion on the question, as the Judge practically gave to the plaintiff the benefit of the rule he contended for by allowing him to put leading questions to the witness on his re-examination. There are but two other advantages which could have accrued to the plaintiff under any circumstances from considering Hardie as the witness of the defendant for all purposes, viz : the right of impeaching his credibility, and of the reply, before the jury. The first of these he does not appear to have claimed, and the second he had. If an error was committed in the ruling of the Judge it had no practical result. II. The plaintiff requested the Judge to charge the jury, 1. “That if in the management of the sale of Gunter’s land, any device was resorted to by McDaniel himself, or by Hardie his agent, or Toy Gunter the defendant in the execution, to prevent the property bringing its best price, the deed to McDaniel is void as to creditors, even if he paid the whole amount of his bid out of his own funds.” We do not see on what principle, a purchaser at execution sale, should be held liable for any devices of the defendant in execution, of which he was innocent and ignorant. If this were the law, a purchaser at execution sale, could never be sure that the sale was valid, and it might be used to defraud him. No authority was cited to support the proposition, and the instruction was rightfully refused. 2. “The plaintiff having shown title by sheriff’s deed, under a sale under execution issued on a judgment against the said Gunter, that Gunter had remained in possession after the sale until the action was brought; and that the transactions under which the defendant now claims title were had between near relatives of the said Gunter, the burden of satisfying the jury of the good faith of those transactions rested upon the defendant. As far the facts in evidence made this charge a proper one, *250 we think the Judge gave the plaintiff the benefit of it, when he put on the defendant the necessity of showing that McDaniel paid for the land from his own means. The sheriff was no relation of Gunter. When a relation of the defendant in the execution purchases property, and then conveys it to the defendant, it does raise a suspicion ; and these circumstances, with others, should go to the jury to be weighed by them in determining the question of fraud. But these circumstances seem to have been fairly left to the jury in that view. 3. “ That if Hardie, as the agent of McDaniel, conspired to hinder creditors of Gunter, his principal is affected by the conspiracy, and the jury must regard the action of the agent as the action of the principal, so far as the rights of the plaintiff are concerned.” The Judge refused all the instructions asked for, and told the jury “ that the only question involved in the action was— was the land bought with Gunter’s money or McDaniel’s money ? That if the jury believed that Gunter, the defendant in the execution, and Hardie, nothing else appearing, combined together to cheat, defraud, hinder, and delay the creditors of Gunter, and if McDaniel bought without notice of this combination, he is an innocent purchaser, and his title good.” Whether the charge of the Judge was right or not, presents a very interesting question, upon which there is no authority that we have been referred to, or that occurs to us. But it is one that we are not called on to decide. The prayer of the plaintiff assumes tnat there was evidence of a fraudulent conspiracy between Hardie and Gunter, or between Hardie and some others, to suppress competition among bidders, and prevent a sale at a fair price. The Judge also assumed that there was evidence to that effect, but held it to be immaterial. Now, although if there had been such evidence, the Judge might have been mistaken in supposing it immaterial, yet, if there was no such evidence, the question which he submitted to the jury was the true one in the case. The counsel for the plaintiff earnestly contended that the *251 uncontradicted and admitted facts established such fraud on the part of Hardie, as would vitiate the sale if McDaniel was affected by it. We do not think that a jury could reasonably draw such a conclusion from the facts to which the counsel adverted. We assume it to be established by the verdict, that McDaniel paid for the land from his own means, and not from Gunter’s, and that there was no understanding between him and Gun-ter, that Gunter should repay him the price, or any part of it, and have an interest in the land. We may therefore put out of view all the evidence which tends merely to negative the finding of the jury on this point. The circumstances -which the counsel relies on as conclusive of fraud are these: 1. That Hardie bought up before the sale the debts of the execution creditors, and thus obtained a certain amount of control over the sale; and, to the amount of the execution debts bought, a right to have them credited on his bid in lieu of paying the whole of it in cash. We know of no reason why this should be illegitimate or forbidden in one who wishes to purchase property at an execution sale, and there is no authority which holds it to be so. That Hardie or McDaniel owned the debts did not tend to suppress competition any more than if original creditors had continued to own them. Parker, as well as all other persons, might still have bid. There was nothing to forbid or discourage them. 2. The property, after its purchase by McDaniel, who was related to the wife of Gunter, was conveyed by McDaniel to the defendant, as a trustee for Gunter for life, with remainder to his children. We have already said that these facts were competent and proper evidence upon the question, whether the price of the land was really paid by Gunter or by McDaniel. But we do not perceive their relevancy as tending to prove any other sort of fraud, such as a suppression of competition at the sale. A purchaser at execution sale may lawfully buy the property of the insolvent debtor with the intent of giving the whole or a *252 part of it to him or bis family afterwards. There is no principle of law which forbids such an act of benevolence, and if the value of the property thus given, comes within the limit of the homestead exemption, the debtor may enjoy it free from interference by his creditors. We have considered this case simply on the points made by the record, and are of opinion that the judgment below should be affirmed. Pee Cueiam. Judgment affirmed.