Gardenier v. Tubbs

By the Court, Cowen, J. Several exceptions seem "to have been taken at the trial; but no bill of exceptions was [171] sealed, and the matter comes before us on a case. The fraud was completely established, independent of Whitcomb’s deposition. The possession after sale, especially when fortified by the agreed trust, for Whitcomb’s benefit, as proved by Philip P. Graff, fully authorized the judge to direct a verdict for the defendants. We must therefore deny a new trial, although we think that Whitcomb was interested, and that his deposition should have been excluded. As between him and the plaintiff, the, sale was valid, and the executions therefore were satisfied and must continue to be so considered, notwithstanding the plaintiff’s failure to sustain the sale to him. The same property is, by the second sale, made to pay other creditors of Whitcomb, whereas had the first been sustained, it would have paid but the set of executions under which it was made. This double payment, Whitcomb was interested to promote. The first sale was executed, and the plaintiff can never allege his own fraud to avoid it, and thus revive his claim." It binds the same as if it had been an ordinary conventional sale to him, for the purpose of defrauding creditors, in which case, though the vendor would be a competent witness for him, he would clearly be incompetent for the creditor who should seek to avoid the sale. Rea v. Smith 19 Wendell, 293. In the last case there is no balance of interest with the vendor, for he is not liable in respect to a failure of title by reason of the fraud. Both parties admit his title and claim through him ; and mutual fraud is the only question. This the law never will recognize as a ground of relief, either one way or the other, as between the parties to it. It will neither enforce nor annul a contract mutually fraudulent. Therefore where the vendor is called for the vendee, he is receivable on the ground of an interest, to testify in favor of the creditor. His interest all lies that way. By sustaining the creditor’s claim, he pays his own debt without fear of any consequences on the other side injurious to himself. Such is the case of interest which the creditor is put to encounter when he offers his debtor as a witness, to impeach his own fraudulent sale to another. Failing to maintain the defence, the judgment [172] debt revives, and a new execution may go against the debt- or. • To make him competent, therefore, he must be released from such consequence. • The proof that Whitcomb had offered the joint note of the Grafs to the plaintiff, and that he did not communicate to Philip P. Graff the agreement with the plaintiff, was properly excluded. As independent proof, it was totally irrelevant ; and if intended as a contradiction of Whitcomb’s account in respect to the same matter, it was inadmissible as going to impeach him in a matter wholly immaterial to the issue between the parties. ... The judge erred in receiving Whitcomb’s deposition but the question coming here on a case, and there being in fact no exception taken to the decision of the judge in this respect, and the ■ defence being clearly sustained independent of the deposition, a new trial is denied. ‘ New trial, denied.