May v. Leverette

Beck, P. J. This was a suit in equity, brought for the purpose of having a deed, made and executed by a husband to his wife, adjudged and decreed to be void on the grounds, first, that the deed was made to delay, hinder, and defraud creditors, which purpose was alleged to have been known to the wife; and, second, that the deed was a voluntary deed, executed by the grantor at a time when he was insolvent. The defendants answer denied the allegations contained in both of those grounds. Held: 1. Under the pleadings and the evidence the court did not err in giving the following charge to the jury: “A husband may be indebted to the wife for the rents of her separate real estate, and such bona fide indebtedness is a valuable consideration to support a deed from him to her.” 2. Nor did the court err, as against the plaintiffs, in giving the following charge: “On an issue such as is just described, the solvency or insolvency at the time of the making of the conveyance attacked as fraudulent is relevant, but the range of the evidence as to time should be so restricted as to reflect the financial condition of the grantor at the time of the making of the deed,” 3. The instruction, “that if you find that Mr. T. J. Leverette had, at the time of the making of the deed to his wife, enough property left with ■ which to pay his debts, and that he had no intention to hinder, delay, or defraud his creditors, then in that event I charge you that it would be your duty to find for the defendants, and this notwithstanding the fact that you might believe that there was no real consideration paid by Mrs. Leverette to Mr. Leverette for the execution of the deed,” was not error, under the evidence and in view of the issues involved. 4. The following charge is excepted to: “I charge you further that the return of property for taxation is not conclusive evidence of title in the one making the return, or in the one in whose name the property is returned. Tax returns may be considered only as a circumstance in determining the title to property returned. Should property be returned for taxation by one having no title thereto, the return would not put title in the one so making the return. Omission to return property in the name of one who owns the legal title thereto would not affect the title of the true owner. So tax returns may be considered only as a circumstance in determining title to property.” This charge properly instructed the jury as to the issue presented for their determination. 5. The question of the solvency or insolvency of a named party was material [553] for the consideration of the jury; and where the plaintiff had alleged that this party was insolvent, it was not error for the court to instruct the jury that the burden was on the plaintiffs to sustain this allegation by a preponderance of the evidence. 6. Another portion of the charge was as follows: “Now, gentlemen of the jury, take this case and apply the rules of law given you in charge to the-testimony as you find it. You are the sole judges of the facts of the case. My duty is merely to give you in charge the rules of law applicable to the facts and circumstances as delivered from the witness stand, and as applicable to the pleadings in the case. I do not wish to invade the province of the jury or even to intimate to you what has or has not been proven in this case. If during the progress of the trial your mind has become impressed with the idea that the court has intimated what has or has not been proven in the case, I wish now to disabuse your mind of such impression. I have no intention so to do.” This was excepted to upon the ground that it made no reference to the documentary evidence, thereby limiting the jury to the consideration of the oral evidence. Where documentary evidence has been introduced, the charge should not contain expressions which might seem to limit the jury to a consideration of the oral testimony only, and the extract quoted is not entirely free from criticism in that respect; but in view of the character of the two or three simple documents introduced, and the other portions of the court’s charge, this inaccuracy does not require the grant of a new trial. 7. The charge complained of in the 7 th ground of the motion for new trial, while not entirely accurate, stated in substance the law controlling the issue to which that charge related, and the inaccuracy referred to was not of such a nature as to require the grant of a new trial. 8. The court did not err in refusing a written request to charge the jury that “If the effect of the deed was to hinder, delay, or defraud creditors, and such was Mr. Leverette’s intention in making the deed, it makes no difference whether Mrs. Leverette knew of such intentions or not.” 9. The court properly admitted the testimony of one of the joint defendants, who was also an administrator of the grantor in the deed, over the objection that the witness was an administrator of the grantor and therefore incompetent to testify to a fact. There is no merit in this objection. The situation here arising clearly falls within none of the exceptions to the general rule as to the competency of witnesses, contained in § 5858 of the Civil Code. 10. But this same witness and other witnesses were permitted to testify what they had heard the grantor in the deed say of his wife, the defendant who is contending that the deed sought to be set aside was not without valuable consideration, saying that the wife had earned and made money in the several various ways related by the witnesses, and had turned this over to him, the grantor. This evidence tended to show a valuable consideration for the deed, and to rebut the contention of the plaintiffs that the deed was a voluntary conveyance; and the objection to it on the ground that it was hearsay properly raised this point, and the court erred in overruling it. The court, however, did rule that the testimony was allowable for the sole purpose of “explaining conduct and [554] ascertaining motive of the. grantor in the deed, and so instructed the jury.” This restriction of the application of the evidence did not cure the error. The evidence objected to was very material upon one of' the controlling issues in the ease; it was hearsay, and did not fall within the' rule that in certain instances hearsay evidence is admissible to explain conduct and ascertain motive. This ruling is applicable to the • testimony of other witnesses, the admission of whose testimony is complained of in several grounds of the motion. No. 5660. July 16, 1927. 11. Evidence of what land was sold for per acre at sheriff’s sale was admissible on the question of the value of such land; but a witness who bid in the property at such sale at a stated price, as agent for another, could not state what was “the maximum limit given him by his principal to bid on the property.” Such evidence was not admissible for the purpose of establishing the value of the property, and' the court erred in admitting it. 12. The testimony of the grantee in the deed in question, who was the wife of the grantor, was objected to and admitted over objection. A part of the testimony was clearly admissible; and the objection going to the entire testimony, its admission will not be held reversible error, though portions of it were objectionable. 13. In view of the issues in this case, the court did not err in not submitting to the jury the question as to whether, or not the deed sought to be set aside and canceled had been delivered. [552] Appeal and Error, 4 C. J. p. 994, n. 56; p. 999, n. 17; p. 1032, n. 36; p. 1039, n. 15. Evidence, 22 C. J. p. 181, n. 81; 87 New; p. 199, n. 36. Fraudulent Conveyances, 27 C. J. p. 502, n. 45; p. 503, n. 64; p. 506, n. 95; p. 551, n. 80; p. 558, n. 29; p. 786, n. 86; p. 796, n. 14 New; p. 804, n. 97; p. 806, n. 15; p. 807, n. 19; p. 819, n. 4 New; p. 842, n. 40; p. 843, n. 42, 43; p. 845, n. 66. Trial, 38 Cyc. p. 1376, n. 99; p. 1599, n. 33; p. 1676, n. 74; p. 1707, n. 98; p. 1785, n. 90; p. 1911, n. 25. Witnesses, 40 Cyc. p. 2273, n. 14; p. 2274, n. 17. [554] Judgment reversed. All the Justices concur. Clement E. Sutton, for plaintiffs. Homer Legg, Burnside & McWhorter, and B. F. Walker, for defendants.