Wheelden v. Wilson

Rice, J. The plaintiff presented himself as a witness upon the stand in his own behalf, and was permitted by the court, against the objection of the defendant, to answer the following interrogatory, proposed by his counsel: “What was your motive in taking the mortgage?” The validity of the mortgage, with reference *■ to which this inquiry was made, was a material fact in issue between the parties. It was assailed by the defendant on the ground of' fraud. Whether it was fraudulent, so far as the plaintiff was concerned, depended entirely upon the intent or motive with which he received it. If it were received for the honest purpose of securing a debt due from the mortgager, or to protect himself from liabilities which he had assumed for the mortgager, and for no other purpose, the law will uphold it. But if taken by the plaintiff for the purpose of aiding or assisting the mortgager to defraud or delay his creditors, or if such purpose constituted any part of the motive which induced him to take the mortgage, then it was fraudulent and void as to creditors. The question of motive or intention was a question of fact, to be determined by the jury. Ordinarily such facts can only bo proved by circumstantial evidence, for the obvious reason that no living witness can absolutely hnow the motives which influence or govern the conduct of others. The secret thoughts and intentions of men are hnown only to themselves and to God. Hence the necessity of inferring from surrounding circumstances the motives which govern human conduct, and give character to the acts of man. In all cases it is desirable to have direct and positive testimony, where it can be obtained. The law requires parties to produce the best evidence which the nature of the [19] case will admit, and witnesses are required to state all facts within their knowledge which are pertinent to the issue to be determined. Was the fact to which the interrogatory referred competent to be proved and pertinent to the issue then before the jury ? And if so, was it within the personal knowledge of the plaintiff? Most clearly so. It was the material fact in the case, and this witness alone had positive personal knowledge upon that point. The objection that to admit the testimony would hold out strong inducements to parties to commit perjury, addresses itself to the legislature rather than to the court. Parties being witnesses must testify subject to the same general rules as other witnesses, unless restricted by the power by which they have been permitted to testify. No error is perceived in the ruling of the judge as to the description of the goods in the mortgage. Moving them from one store to another could not destroy the mortgagee's right to them, though it might render it more difficult for him to identify them as the goods covered by his mortgage. The burden of proving the identity was upon him; if ho failed, the defendant could not be injured thereby. The motion presents more serious difficulties. The mortgager, called by the plaintiff, testified, among other things, as follows: “ I was fearful somebody might strike. I put them (the goods) so that I might keep my stock, so that no one could jump upon mo. I made the mortgage so that one should not get the whole, and the rest get nothing. I told father when I had his name that if I saw any chance for trouble I would so secure him that he would lose nothing by being security for me. I did not know but some one might strike. I was afraid some one might attach, so I put it in a shape so that I could make an equal distribution.” This testimony, and there is much more of similar import, proves the transaction fraudulent on the part of the mortgager, past all doubt. Did the mortgagee have knowledge of and participate in, or assent to the fraud. He testifies that [20] in his participation in the transaction he had no fraudulent intention. The mortgager, referring to the testimony above recited, says, “ this is the conversation had with father,” and again, this witness, in speaking of the plaintiff, says, “he thought a year would be sufficient in which to fix up my matters.” The plaintiff also testified, “ My son has told the truth as to the transaction, and I could not state it any differently from what he has.” “He said, when he came down that morning, that he was owing a number round about, and he did not know but what some of them might make trouble or costs; he told me how it was; he thought it was best to come up and have a mortgage made. Don’t know whether he or I got the mortgage made; can’t say who paid for the mortgage; can’t say who paid for recording; think he did.” The transaction was surrounded with many circumstances, not conclusively proving fraud, it is true, but which have ever been looked upon Avith suspicion, as indicating a fraudulent intent. Thus the transaction was between near relatives — father and son; the transfer was in gross, and of all the visible property of the mortgager; no account of stock was taken; no change was made in the actual possession of the property mortgaged; the business was carried on in the same manner after as before the mortgage; no settlement was made by which the respective rights of the parties were determined; the mortgager was deeply embarrassed and in constant apprehension that his creditors would attach his goods, which fact the plaintiff Avell knew, as he did the motive which induced the mortgager to act. These facts and circumstances, in our judgment, overcome the denial of the plaintiff of a fraudulent intent on his part. It may not have been the intention of either the mortgagee or the mortgager to perpetrate a moral fraud; they may have intended to act for the benefit of all the creditors of the mortgager; but that they both intended to place the property mortgaged beyond the reach of legal process, and [21] thereby to delay, if not to defeat, creditors, we think the case clearly shows. This constitutes a legal fraud. The exceptions are overruled, but the motion is sustained, and a new trial granted.