Paige v. O'Neal

Field, J., delivered the opinion of the Court—Terry, C. J., concurring. The instructions filed by the defendant cannot be the subject of consideration. They are not embodied in any statement or bill of exceptions, and are neither certified to by the Judge, or signed by him, and thus want the authentication essential to constitute any portion of the record. The case must, therefore, be determined upon the sufficiency of the errors alleged, in disallowing the challenges for cause to three of the jurors called; in the delivery by the jury of their sealed verdict to the Coroner, and their subsequent separation; in the entry of the verdict without calling the names of the jurors, and asking them whether they had agreed upon the same; in the refusal of the non-suit ; in the admission of McCloud as a witness; in the exclusion of evidence of his subsequent declarations as to the bona fides of his sale to the plaintiff, and in overruling the motion for a new trial on the ground that the evidence was insufficient to justify a verdict for the plaintiff, and that the damages assessed were excessive. The challenges made to the jurors Fowler, McKee and Smith, were properly overruled. They were interposed in general terms for cause, without a specification of the particular grounds. The statute enumerates several different grounds for which such challenges may be taken, and a designation of the one upon which any particular challenge rests is essential to its consideration by the Court (Practice Act, sec. 162). It is not sufficient to say, “ I .challenge the juror for cause,” and then stop—as in the present case. The ground upon which it can be sustained, if at all, must be also stated. See Graham on New Trials, Waterman’s ed., 2 vol., note to page 473; Maun v. Glover, 2 Green’s N. J. Rep. 195. But, aside from this consideration, none of these jurors thus challenged sat upon the trial. They were afterwards all — 493 — challenged peremptorily. Two other jurors, it is true, were challenged for cause, and the challenges disallowed; but it does not appear for what cause, or at what time, nor that the parties desired to challenge peremptorily after such disallowance. The two jurors may have been called and examined before the three jurors, and the defendant may have declined to challenge them peremptorily. The case was given to the jury in the evening, and upon retiring for deliberation, they were instructed to bring in a sealed verdict the following morning. After agreeing upon their verdict they sealed it up, and the Clerk of the Court being absent, delivered it to the Coroner, under whose charge they were at the time, and requested him to give it to the Clerk. On the same evening the Coroner gave it, sealed up as when received, to the Clerk, who opened it the following morning in Court. All the jurors were at the time in their seats, and the verdict was opened in their presence and read to them. Their names were not, however, called, and they were not asked whether they had agreed upon the verdict, and this omission and the delivery of the sealed verdict to the Coroner, constitutes the objection urged by the’ appellant. The answer to the objection, that the names of the jurors were not called, is ready and conclusive. No exception was taken at the time, and it is too late for the defendant to take advantage of the omission after acquiesence by his silence in the mode of proceeding. It is not pretended that the verdict entered, differs from the one sealed up, or that the result was in any respect affected by the omission. Errors which are immaterial and do not affect the substantial rights of the parties are unavailing on appeal, even when the subject of exception, much less so when they are permitted without objection. Practice Act, sec. 188. The objection as to the delivery of the verdict to the Coroner, instead of the Clerk, is untenable. The Coroner was the officer under whose charge the jury were deliberating, the Sheriff being incapacitated by his position as a party to the suit. The possession by him left the verdict as much in the possession of the Court itself as if it had been directly delivered to the Clerk. We can perceive no valid objection to its delivery, upon the separation of the jury, to the sworn officer under whose charge they were deliberating. The authorities cited by — 494 — appellant only establish the general proposition that the jury possess the right to alter their verdict, and the parties a right to poll them, at any time previous to its record. If this were true, in all instances, it would not help the case of the appellant, for it is not claimed that any desire to change the verdict was ever exhibited by the jury, or any right to poll the jury was ever insisted upon by either party. But we are not prepared to concede that the proposition is true in all instances. We are inclined to doubt whether a jury, after agreeing upon a sealed verdict and separating, can change it, except in mere matters of form. The opportunities of tampering with juries after separation are so numerous, and in important cases the temptation so great, and the ability of detection so slight, as to make it a matter of grave doubt whether sound policy does not require an adherence to the verdict as sealed, even as against a subsequent dissent of one or more of the jurors. But upon this point we refrain from expressing any decided opinion, as unnecessary to the determination of the point presented. The next question arises upon the refusal of the motion for nonsuit. The action was brought to recover twenty-three hundred and twenty sacks of wheat, of the value of nine thousand three hundred and ninety-six dollars, alleged to be the property of the plaintiff, and to have been taken by the defendant and converted to his use. The defendant in his answer denied the taking and conversion of the property, and set up as a special defense the recovery of a judgment by one Fisher against Kelty & Reynolds for the sum of $11,856, the issuance of execution thereon, the levy of the same upon the wheat, and that such wheat was the property of the defendants in the execution, and was at the time in the possession of one McCloud, under a bill of sale to him by Kelty & Reynolds, executed with intent to defraud their creditors. When the motion for nonsuit was made, the plaintiff had proved a purchase of McCloud of three thousand sacks of wheat, more or less, in a certain warehouse; his taking a warehouse receipt for the same, and agreeing to pay the storage from the date of his purchase ; that the wheat was sold to him all in one body, not mixed with anything else; that he paid for the wheat, at different times, over nine thousand dollars ; that he had removed about seven hundred sacks, and that the balance was taken by the defendant, as — 495 — Sheriff, under an execution against Kelty & Reynolds. The motion was based upon the ground that the plaintiff had not proved a sale to him of the wheat, or its delivery, or averred a demand for it in the complaint, or proved a demand for it previous to the commencement of the action. The evidence offered made out a prima facie case for the plaintiff. The defendant had not, as yet, laid the foundation for the special defense set up by the introduction of the judgment against Kelty & Reynolds. The property was in the possession of McCloud, a stranger to the execution. Its seizure by the defendant, and subsequent sale had been shown. As a justification for that seizure, the execution was insufficient. The judgment upon which it was issued was also essential, and until its production, the defendant was not in a position to attack any claim of the plaintiff. The sale from McCloud to the plaintiff was sufficient without any delivery. The statute only requires an actual and continued change of possession as a protection against creditors and subsequent purchasers of the vendor. At the time the motion was made, the connection of any other person than McCloud with the wheat, as vendor, had not been disclosed, and the defendant was not acting for any creditor of his, or any purchaser from him. It was not essential to aver a demand of the defendant of the wheat in controversy in the complaint, or to prove a demand on the trial. If the property in fact belonged to the plaintiff, and it is upon this theory the suit is brought, and to this effect the evidence tended when the plaintiff rested, the seizure by the defendant was tortious; and it is a general rule, that when the possession of property is originally acquired by a tort, no demand previous to the institution of suit for its recovery is necessary. It is only when the original possession is lawful, and the action relies upon the unlawful detention, that a demand is required. (Acker v. Campbell, 23 Wend. 371; Sedley v. Hays, 1 Cal. 160.) The case of Daumiel v. Gorham, 6 Cal. 43, only decides, that where the goods of a third person are mixed with the property, or are in the apparent possession of the judgment debtor, a Sheriff who levies upon them, supposing them to belong to the defendant in execution, is not liable as a trespasser db initia, and it is necessary to show a notice and — 496 — a demand of the goods, and a refusal to deliver. In the case at bar, the officer was not misled by any apparent possession of the defendants in execution, or by any mixture of their property with that claimed by the plaintiff. The objection to the competency of McCloud was untenable. The release executed, discharged him of all interest in the event of the action. He could not be subsequently held liable upon any implied warranty, or be debarred by any defect in the title of the property from a recovery of the balance due on the sale. The nonpayment of the consideration did not affect the operative effect of the instrument as a valid release. The obligation,to pay the consideration was created by the acceptance of the release, and was not dependent upon the contingency of a recovery in the action. The offer to show the subsequent declarations of McCloud as to the lona fides of his sale to the plaintiff was properly overruled. Such declarations were clearly inadmissible. McCloud was then as much a stranger to the title as though he had never had any connection with the wheat, and his statements were entitled to no greater weight than mere hearsay. Declarations of the vendor, prior to sale, stand upon very different grounds. Bridge v. Eggleston, 14 Mass. 250. The motion for a new trial, on the ground that the evidence was insufficient to justify a verdict for the plaintiff, was properly overruled. The other points made in the motion have already been considered. The testimony on the part of the defendant, embodied in the transcript, abundantly establishes the right of the plaintiff to a recovery; indeed, it warrants no other result. According to that testimony, Kelty & Reynolds were the original owners of the wheat, and in June, 1857, executed a bill of sale, and delivered possession of it to McCloud, who stored it in a warehouse, rented by him. Though this sale was void, as against the creditors of Kelty & Reynolds, in being made to the knowledge of McCloud, to prevent Fisher from reaching the property on execution, or by attachment, it was good as between Kelty & Reynolds and McCloud; and a sale by the latter to the plaintiff, for a valuable consideration, without notice of the original fraud, passed a perfect title. The plaintiff could not be afflicted in his purchase, though — 497 — the title of his vendor was acquired by fraud. The sale to McCloud was not an absolute nullity. The title to the property passed to him, and would have remained with him as against any assertion of right by his vendors. It was subject to be defeated upon the action of their creditors; but, until such action, his power of disposition was absolute. The title originally affected with a taint became cured by the subsequent conveyance. It could be defeated only whilst it remained in him, unless the plaintiff had previous notice of the fraud rendering void the title. (Statute of Frauds, sec. 24.) To this effect is the decision of this Court in Merryfield v. Bachelder et al., rendered at the January Term, 1854, (not reported). In that case, the plaintiff brought suit to recover certain mining interests purchased by him of one Witts. The defendants set up a purchase under a judgment recovered against one Ortman, and that the conveyance by Ortman to Witts was made to defraud his creditors; but the Court said: “ Whatever fraud may have entered into the original sale from Ortman to Witts, it is not shown that Merryfield was privy to it; he must, therefore, be treated as an innocent purchaser,” and affirmed the judgment for the plaintiff. Conveyances of real and personal property, made to hinder, delay or defraud creditors, are subject to the same defect, liable to be avoided at the suit of the creditors, but valid as between the parties, and vest a title which can be transferred perfect to a bona fide purchaser for a valuable consideration. In Fletcher v. Peck, (6 Cranch. 133) the doctrine is thus clearly expressed by Mr. Chief Justice Marshall: “ Titles which, according to every legal test, are perfect, are acquired with that confidence which is inspired by the opinion that the purchaser is safe. If there be any concealed defect, arising from the conduct of those who held the property long before he acquired it, of which he had no notice, that concealed defect cannot be set up against him. He has paid his money for a title good at law; he is innocent, whatever may be the guilt of others; and equity will not subject him to the penalties attached to that guilt. All titles would be insecure, and the intercourse between man and man would be very seriously obstructed, if this principle be overturned.” In Bean v. Smith et al., (2 Mason, 274) Mr. Justice Story says : “ A conveyance to defraud purchasers, or to defraud creditors, is not — 498 — ‘ utterly void,’ as has been sometimes supposed ; it conveys the estate effectually as between the parties and their representatives ; and the estate may be maintained against all persons but those whom it was intended to defraud. The grantor himself cannot convey the same title to any mere volunteer, nor can he avoid his own grant in his own favor; nor can a mere stranger contest the validity of the conveyance. The estate, therefore, passes toties quoties by every subsequent conveyance, and it is good against all the world, except creditors and purchasers, in the possession of every successive grantee, even with notice of the fraud;” and after commenting upon a distinction drawn by Chancellor Kent, in the protection afforded to bona fide purchasers, without notice, when the conveyance from the original grantor was made in fraud of purchasers, and when it was made in fraud of creditors, observes : “ The policy of the law generally is, to support bona fide purchasers, for a valuable consideration, in the titles acquired; and this policy is at least as ancient as Woodcock’s case, in 33 Hen. 6,14, where a conveyance from a fraudulent grantee to such a purchaser was permitted to defeat highly meritorious and legal claims. The great object of the law is to afford certainty and repose to titles honestly acquired. It is of no public utility to destroy titles so acquired, on account of the taint of a prior secret fraud, which was unsuspected and unknown, and which, probably, no diligence could detect. If the creditor of the original grantor be cheated by holding such titles valid, the innocent purchaser would be no less cheated by holding them void. And, therefore, the common law, which leans,to equity, is unwilling to visit upon innocent persons the consequences of fraud. It enables them to hold estates acquired bona fide, for a valuable consideration, purged of the anterior fraud that infected the title,” See Trott et al. v. Warren, 11 Maine, 227 ; Jackson v. Henry, 10 John. 186 ; Mowrey v. Walsh, 8 Cowen, 238; Root v. French, 13 Wend. 570 ; Somes v. Brewer, 2 Peck, 184; Rowley v. Bigelow, 12 Pick. 308; Dexter v. Harris, 2 Mason, 531. There is no evidence contained in the record which shows or tends to show any knowledge on the part of the plaintiff of the fraudulent character of the sale from Kelty & Reynolds to McCloud. All the parties to that transaction assured Mm that the sale was a valid and — 499 — honest one. McCloud was in the possession of the property with the evidence of title from the original owners, and had been in such possession for months previous to the purchase, and the subsequent conduct of the plaintiff was that of a man unsuspicious of any taint resting upon the title of his vendor. He appears to have relied implicitly upon the representations of the parties. He paid, at different times, the greater portion of the contract price, and yet left the bulk of the property in the possession of McCloud. He did not even take any steps for its removal, except in parcels, as he had found occasion to dispose of it. The damages awarded to the plaintiff, beyond the value of the wheat, after remitting the two thousand dollars directed by the Court, do not appear excessive—certainly not to that extent to justify the reversal of the judgment. The value of the wheat, as found by the jury, is beyond that established by the evidence. Starbuck, who places his estimate upon its value at five cents a pound, does not appear to have examined or seen it. Nye, who had examined it, placed its value at four and one-half cents per pound. The jury took the highest estimated value, and the difference between the two estimates is ten hundred and sixty six dollars. In this amount the judgment must be reduced. The judgment, therefore, will be affirmed at the cost of the respondent, upon his filing a remittitur of one thousand and sixty-six dollars of its amount. Ordered accordingly.