Heath v. Slocum

Mr. Justice Paxson delivered the opinion of the court March 21st, 1887. We think it was error to exclude the evidence referred to in the first assignment of error. The defendants below were charged with fraud, and it is familiar law that in such cases the party alleging the fraud is entitled to a wide range of evidence to sustain such charge. This grows out of the difficulty of proving fraud. It is usually secret and is pursued by intricate and crooked paths. At the same time a reasonable liberality must be allowed to a defendant in his attempt to rebut or disprove such a charge. It is a serious accusation to make, as it affects not only property’but reputation as well. . The particular fraud with which the defendants were charged below, was an attempt by the defendant, Wm. H. Heath, to convey the property in dispute to his wife, Mary Heath, [557] without consideration, and in fraud of the rights of the plaintiff, who had a judgment against him for $6,240. Chronology is sometimes of importance. The plaintiff entered a judgment against the defendant, Wm. H. Heath, on March 12th, 1878, for $6,240, on a note .dated April 7th, 1877. The defendants conveyed the premises in controversy to S. A. Gardner by deed dated October 11th, 1877, for the consideration of $5,000. This consideration was never paid. S. A. Gardner gave Wm. H. Heath her note for $5,000, and on the 26th of November, 1877, she conveyed the property to Mary Heath, whereupon her note was surrendered to her. The plaintiff sold the premises on Aug. 9th, 1879, under an execution issued upon his judgment against Wm. H. Heath, and bought the same at sheriff’s sale. He received a sheriff’s deed therefor. This, without more, would leave the title in the plaintiff by virtue of his purchase at sheriff’s sale. But the defendant, Mary Heath, contends that the property belonged to her; that it was purchased for her by Wm. H. Heath, her husband, acting as her agent, and paid for out of her separate estate, of which she had ample for that purpose; that the placing of the title in her husband’s name was a mistake, to which his attention had been called as soon as it was discovered; that he had promised to correct it, or make it right; that in pursuance of. said object and for such purpose, the said Wm. H. Heath made an assignment to the said Mary Heath of said deed, which was indorsed on the back thereof, and dated Nov. 20th, 1869; that this deed with the indorsement thereon was submitted to counsel and his opinion asked as to whether that was the proper mode of conveying the estate, and the defendants were advised that “the more regular and legal way was to convey the property to a third person as trustee, and let him convey it back to Mary Heath;” and finally that the conveyance by the defendants to S. A. Gardner was made for the purpose of putting the title in the said Mary Heath, where she alleges it properly belonged. There was evidence that Mrs. Heath had ample separate estate derived from her father, to pay for the property. It was under such circumstances that the offer of evidence embraced in the first assignment was made. Surely it was competent for the defendants when charged with such a fraud as this, to show that years before the plaintiff had become a creditor of Wm. Hr Heath, the latter had assigned the property to his wife, and had consulted counsel as to the validity of the transfer. That the assignment was not recorded does not affect the competency of the evidence; the legal title was [558] out of Win. H. Heath before the plaintiff entered, the judgment against him. It was not error to reject the offer of evidence referred to in the second assignment. It was an offer to prove by the witness on the stand, Miss S. A. Gardner, “that the purpose of the deed and assignment was to convey the legal estate in the land in question from William H. Heath to Mary Heath, and that the transfer to S. A. Gardner and her assignment was for that purpose; to be preceded, by the offer and admission of the deed.” We can see no objection to the admission of the deed, and we think it was competent to prove any fact which tended to throw light upon the conveyance to Miss Gardner and from her to Mary Heath. The cross-examination of the witness Gardner had left that transaction in an equivocal shape. It showed that the consideration named in the deed had not been paid. Now this conveyance may have been a fraud, or it may have been a bungling way of doing a perfectly lawful thing, that is, the conveying of the title from Wm. H. Heath to his 'wife, where, according to the theory of. the latter, it should have been placed-originally. Plence, we think that any fact or circumstance occurring at the time, showing and explaining the true character of the transaction, would have been competent evidence. The witness was merely asked for an opinion. What was needed were 'the facts of the case, from which the jury could judge of the nature of the conveyance. The third assignment is not sustained. We think it was competent to show that at the time Heath gave the judgment to the plaintiff he Avas the owner of- from twenty to thirty thousand dollars worth of unencumbered real estate, for the reason that it tended to rebut the allegation of an intent to defraud creditors. But it was accompanied by an offer to show the extent and value of other real estate purchased by the plaintiff under this execution. This was not relevant to the issue trying,-and as the evidence was offered as a whole it Avas not error in the court to reject it. There is sometimes peril in overloading an offer of evidence. We sustain the fourth assignment. It was competent in rebuttal of the alleged fraud to show by the witness, L. W. De Witt, Esq., that he had seen the deed from Jos. Fellows to Wm. Heath, Avith the assignment to Mary ITeath indorsed thereon. This was in 1875, about tAvo years.before the plaintiff loaned this money to Heath. What has been said in regard to the first assignment renders a further discussion of this point unnecessary. We also sustain the fifth assignment. The deed referred to with the assignment to Mary Heath indorsed thereon should [559] have been admitted in evidence'. This would seem to be obvious from what has been already said. The court rejected it as inconsistent with the affidavit of Mary Heath, made in the proceeding before the justice, to obtain possession under the ’Act of Assembly. In that affidavit she -said that she did not come into the possession of the premises, and did not claim to hold the same under the said Wm, H. Heath, the defendant in the execution, but that she came into possession under the Gardner title, derived from the said William H. Heath before the date of the plaintiff’s judgment, etc. If the property belonged to Mrs. Heath, as claimed by her, she might well have made such an affidavit. And if the Gardner conveyance was an honest transaction, though a clumsy one, it would be harsh to hold her to such a rule as this. We think the deed should have been admitted. The sixth, seventh, eighth, ninth and tenth assignments allege error in the charge of the court, and are not sustained. Some stress was laid upon those portions of it which refer to the question whether the money of Mary Heath was traced into the purchase of this property. That she had the means to do so was not seriously disputed. This is not sufficient, however. It is not enough to have the means, they must be actually applied to the purchase. If, however, her husband had her money in his possession, and he used it in the purchase of the property, it would support her title. When a wife allows her husband to act as her agent in the care and investment of her money, no presumption of a gift arises. On the contrary, if he invests it in real estate and takes the title in his own name, a resulting trust arises in her favor. The eleventh assignment is not sustained. The question of actual fraud could not have been properly withdrawn from the jury. Judgment reversed and a venire facias de novo awarded. #