Confer v. McNeal

The opinion of the court was delivered, July 2d 1873, by Agstew, J. — The plaintiff in this ejectment claimed the land in controversy under an article of bargain and sale, dated in 1853. A defence set up to the bargain was, that it was a fraudulent agreement between the two brothers, Jacob and Samuel Confer, to protect Jacob’s property against his creditors; and McNeal, the defendant, having purchased at a sale for the payment of Jacob’s debts, was in a position to contest the sale to Samuel. Samuel Confer never took possession under his contract, but suffered Jacob •to remain on the land, taking all the profits and selling timber to •a very large amount. Shortly after this bargain, Jacob confessed ■a judgment to Samuel, under which Jacob’s personal estate was sold and bought in by Samuel, but suffered by him to remain with •Jacob, no money passing from Samuel to the sheriff upon the sale. It was in proof also, that Jacob was largely in debt, and died insolvent. Besides these facts there was evidence that the sale to Samuel was merely colorable. Jacob’s wife testified it was a sham, and his administrator testified that he never set up a claim to the purchase-money under the contract between Jacob and Samuel. Altogether the evidence of collusion between the two brothers was [115] ample. It was stronger than the evidence of collusion in the cases of Bredin v. Bredin, 3 Barr 81; Gibbs v. Neely, 7 Watts 305; Rogers v. Hall, 4 Watts 361; or Deakers v. Temple & Barker, 5 Wright 234. After this evidence had been given the defendant offered a paper in the handwriting of Jacob Confer, found among his papers after his death, but not signed, containing a memorandum of the understanding between Samuel and himself, in relation to the bargain for the land. The purpose of the offer was to show that the bargain was fraudulent as to Jacob’s creditors. It was objected to because the memorandum was without date ; Samuel was no party to it, and could not be affected by Jacob’s subsequent declarations. Had there been no precedent evidence of collusion between Jacob and Samuel, these objections would have been fatal, and the authorities cited by the plaintiff in error would have been in point. The absence of evidence of collusion, fraud or concert, is the very ground on which Judge Coulter puts' the decision in Scott v. Heilager, 2 Harris 238. And in all the cases cited the ground of decision is, that an absent vendee is not to be affected by the declarations of his vendor, when not a party to a fraud. On the other hand, as said by C. J. Gibson, in Rogers v. Hall, 4 Watts 361, the least degree of concert or collusion between parties to 'an illegal transaction, makes the act of one the act of all. This is repeated by Judge Rogers, in Gibbs v. Neely, 7 Watts 307. And so in MacKinley v. McGregor, 3 Wharton 397. The strongest case of all on this point is Bredin v. Bredin, supra. There was no evidence of any acts or declarations on the part of John Bredin before he accepted his brother James’s bond, to connect him with the fraud on James’s creditors. Consanguinity and certain coincidences in his subsequent acts were the only evidence; yet there, Gibson, 0. J., said, that after much reflection he had changed his first opinion, and he supported the evidence of James’s declarations, which went to impeach the bond in the hands of John. In Deakers v. Temple & Barker, supra, it was said by Justice Woodward, that all experience proves, and rules of evidence are founded in human experience, that, if fraud is to be detected, under the various cloaks it puts on, the conduct of the parties before and after the fact complained of, as well as in immediate connection with it, must be freely examined. Justice Rogers says, in MacKinley v. McGregor, supra: “ For this purpose (fraud) all the transactions of Mrs. MaeKinley, and her declarations, in connection with the business in which she was engaged as the agent' of her husband, were properly admitted in evidence. It is true, that a disposition to cheat one person cannot be called in to aid evidence of fraud in a subsequent or prior and distinct transaction. But when it is one of a series of acts, although with distinct and different persons, it may be received to prove a general combination, or preconcerted plan to cheat and defraud, of which [116] the one in controversy may be the result.” In this case the memorandum was both an act and a declaration of Jacob, corroborative of the prior scheme of fraud to baulk his creditors. It was a continuation on his part of the collusive combination, and tended to strengthen the proof. But it is said it ought not to have been received in evidence, because Samuel was dead when Jacob made the memorandum. But Samuel’s death did not put an end to the scheme of fraud already participated in by him, or destroy the propulsive force he set in motion by his concerted act. How then could his death put out of sight an act of the survivor in pursuance of and in perpetuation of the fraud both had put into motion. True, Jacob's act after his death would not be primary evidence against Samuel, to establish the joint concert; but as an effect of the producing cause (the collusion already proved), and as one of a series of acts in the same direction, it corroborated the evidence of what had gone before, and therefore had some weight in the chain of proof, and this it was for the jury, and not the court, to determine. It may be slight, yet there was no error in receiving it. Judgment affirmed. Williams and Mercur, JJ., dissented.