Day v. Cooley

Morton, J. The court is of opinion that none of the exceptions taken by the tenant can be sustained. 1. The main issue in the case was whether the premises were fraudulently conveyed by Edward Cooley to the tenant. The demandants called said Edward Cooley as a witness, and he testified in substance that he had no fraudulent intent or purpose in making the conveyance to the tenant. This evidence was relevant and material. If the witness had been introduced by the other party it clearly would have been competent for the demandants to impeach his credit by showing that he had made contradictory statements at other times. Under these circumstances, the St. of 1869, c. 425, gives to the party producing the witness the right to contradict him by proving “that he has made at other times statements inconsistent with his present testimony.” Ryerson v. Abington, 102 Mass. 526, and cases cited. [527] The conditions upon which the statute permits the introduction of such testimony were complied with in this case, and the jury were carefully instructed that the testimony was competent, “ not as evidence of the truth of the statements, but to contradict the previous testimony of the witness.” For this purpose it was rightly admitted. 2. It appeared that a part of the debt included in the demand-ants’ judgment was contracted after the conveyance to the tenant, and in view of this fact the tenant asked the court to instruct the jury that the demandants “ were to be treated as subsequent creditors; and in order to impeach this conveyance for fraud they must show that it was made with an intent to contract subsequent debts to the demandants, and to avoid payment of the same by this conveyance.” This instruction was rightly refused. This is not a case of a voluntary conveyance which would be good against subsequent creditors if not tainted with any fraud. The jury have found that the conveyance to the tenant was made with a fraudulent purpose. The instruction requested is based upon the assumption that the only ground upon which subsequent creditors can impeach a conveyance by their debtor, is that it is made with the specific intent to contract future debts to them and avoid the payment of the same. This is not the law. It is well settled that if a debtor makes a conveyance with the purpose of defrauding either existing or future creditors, it may be impeached by either class of creditors, or by an assignee in insolvency or bankruptcy who represents both. Parkman v. Welch, 19 Pick. 231. Thacher v. Phinney, 7 Allen, 146. Winchester v. Charter, 12 Allen, 606. Wadsworth v. Williams, 100 Mass. 126. As it was proved in this case that the grantor had an actual fraudulent design which was participated in by the grantee, it is immaterial whether the demandants are to be regarded as subsequent or existing creditors as to the conveyance. 3. After the charge to the jury, the tenant requested the court “to instruct the jury that it was not sufficient that the tenant had knowledge enough of his father’s affairs to put him upon inquiry in regard to his intentions in this conveyance to charge him with participation in the fraud.” The presiding judge in his charge had already instructed the jury that the demandants must prove that both the grantor and the grantee had a fraudu [528] lent purpose in the conveyance. He had properly referred to various circumstances in evidence, among which were the relation of the parties and their knowledge of each other’s affairs, as bearing upon the question of fraud, and had left it to the jury to determine, upon all the evidence, whether such fraudulent purpose was proved. The instructions excluded the idea that it was sufficient to show that the circumstances were such as to put the grantee' upon inquiry, and thus covered the requested instruction. It was within the discretion of the presiding justice, who could best judge whether it was necessary, or conducive to a fair understanding of the case by the jury, to decide whether the instruction requested should have been given, and the tenant has no ground of exception to his decision. Exceptions overruled,