Baird v. Ford

Opinion by Mr. Justice McCollum, The appellants request us to find from the evidence submitted to the auditor and printed in their paper book that A. J. Ford’s judgment is collusive and fraudulent. It is a question of fact to which they direct our attention and their complaint here is that it was erroneously decided against them by the auditor and the court below. It is not necessary to cite authorities in support of the familiar proposition that an auditor’s finding of facts when approved by the court to which his report is made is entitled to the same consideration here as the verdict of a jury and will not be reversed except for palpable error. In this case the burden of maintaining the charge of fraud by satisfactory and convincing evidence is on the appellants. They are seeking to set aside a judgment which is regular on its face and prima facie entitled to the fund for distribution. There is no presumption that it is fraudulent, and they cannot take any portion of the fund which appears to belong to it until they have proven that it is. An examination of the testimony on which they rely to support their charge has failed to satisfy us that the auditor erred in finding affirmatively, as he substantially did, that there was no collusion between the parties to the judgment, or fraud practiced or intended by either of them in obtaining or reviving it. There is no evidence showing or tending to show that there was any agreement or understanding between the Ford brothers [640] at any time that John should have credit on the judgment in controversy for the amount of his judgment against the Tidball property, or that the former judgment was revived by them for more than was actually due upon it. If their testimony is credited, and there is no direct denial of it to be found in the evidence offered by the appellants, A. J. Ford became a purchaser of the Tidball property on the urgent solicitation of his brother John and in the hope of realizing enough by a sale of it to reimburse himself and pay to John the whole or at least a part of his judgment. From their account of what passed between them before and at the time of the sale he did not become by the purchase of the property unconditionally liable for the amount of John’s judgment, and he was under no legal or moral obligation to pay it at the time his own was revived by their agreement. His liability if any exists in consequence of the purchase is, under their evidence, contingent on a sale of the property for more than enough to reimburse himself, and is measured by the surplus. The testimony supporting this view of the Tidball purchase and the rights and liabilities of the Ford brothers under it, could not be ignored by the auditor in passing’upon the allegation that the revival of the A. J. Ford judgment was a fraud on the creditors of John. This purchase and John’s voluntary satisfaction of his judgment in aid of it constitute the principal reliance of the appellants in their assault upon the judgment in controversy, and any explanation of their acts which shows their consistence with an honest revival of it for the full amount, is important and, if credited, destructive of the theory on which the charge of fraud is made. In the fact that A. J. Ford allowed the lien of his judgment to expire in January, 1887, and did not revive it until March, 1890, there is but little significance. The lien of the judgment was lost more than three months before his purchase of the Tidball property, and when it was a valid obligation for the whole amount, and when he revived it appellant Baird’s judgment was a prior lien. The loss of the lien and the delay in reviving it are quite as indicative of carelessness or of confidence in John’s solvency as of a conspiracy to defraud creditors. We have carefully examined and considered the evidence [641] produced by the appellants to sustain their charge of fraud, and have briefly referred to the most important features of it. Our conclusion is that it will not justify a reversal of the affirmative finding by the auditor that the assailed judgment is not collusive and fraudulent. As the decree of the court below gave to Alexander & Co. the full amount of their judgment with interest, costs and attorneys’ commissions, their appeal from it was probably prompted by an apprehension that it was not sustainable on the facts found by the auditor. The specifications are not sustained. Appeal dismissed at the cost of the appellants. See also the next ease.