Sweetser v. Bates

Colt, J. The mortgage of personal property, which was given some months after the alleged fraudulent conveyance, was not admissible as an act or declaration of the grantor in that conveyance, to impeach the title of the tenant. It had no tendency to show fraudulent participation on the part of the tenant. But the evidence does not appear to have been admitted for that purpose; it was accompanied by lurther evidence that the mortgage then made covered all the property of one of the grantors — 468 — then subject to be taken on execution; it was thus made the means of measuring the amount of his property at that time, and had some tendency to prove his condition as to solvency at the time of making the deed in question. Otis v. Hadley, 112 Mass. 100. If the evidence was admissible for any purpose, there is no ground of exception, unless the judge refused to limit its application. In the absence of anything in the exceptions showing the contrary, it must be presumed that the proper limitation in the use of it was given. Earle v. Earle, 11 Allen, 1. The other declarations of the grantors made while they occupied the premises, but subsequent to the date of the deed, would not be admissible to impeach an otherwise valid title. But the case does not show what the declarations objected to were, or that they were in any degree prejudicial to the tenant. The party excepting must show that he has been prejudiced by the ruling. Kershaw v. Wright, 115 Mass. 361. Evidence of the general reputation of all the parties to the alleged fraudulent transaction, as to their credit and pecuniary responsibility, was properly admitted. The general reputation of the grantors in this respect was a fact which, with other circumstances, would have some tendency to show that the tenant must have understood their motives in making the conveyance, and might have participated in their unlawful purpose, and proof of the tenant’s want of credit would have a tendency to prove that the conveyance would not have been made in good faith to her in sole reliance upon her future ability to pay. There was no evidence beyond the recital in the deed of the payment of the consideration named. Fraud is usually proved by circumstances more or less remote; some of those circumstances, standing alone, may be of slight importance; but much must be left to the discretion of the presiding judge, who can better see the bearing of each particular fact upon the whole case. And so it was held in Cook v. Mason, 5 Allen, 212, which was a case like this, that evidence that the grantee’s general credit was bad, though somewhat remote, could not be said to be incompetent. And under our insolvent law it was settled that evidence of the debtor’s general reputation for insolvency at the time of the conveyance was admissible as tending to prove the tenant’s reasonable cause — 469 — then to believe the grantor’s insolvency. Lee v. Kilburn, 3 Gray, 594. Metcalf v. Munson, 10 Allen, 491. Exceptions overruled*