Ansley v. Carlos

ORMOND, J. The counsel for the plaintiff in error contends, that the court erred in the admission of the testimony tending to prove fraud in the constable’s sale, upon the authority of the cases of Creagh & Forwood v. Savage, and [977] Costillo & Keho v. Thompson, at this term. In the first of these cases, we held that the purchase by a sheriif at his own sale, was not void, but voidable merely. In the last, the trustee in a deed of trust at a sheriif’s sale, where the trust property, consisting of a house and lot, was levied on, gave notice of the existence of the deed, purchased in the property at a reduced price, and received the sheriif’s deed. The property being again levied on, as the property of the grantor, we held that the sale was not void, although the intention of the trustee, by giving notice of the deed, was to enable him to buy in the property at a sum below its value. When this case was here at a previous term, Carlos v. Ansley, 8 Ala. 900, the question presented upon the record, was, whether the adverse possession of- Ansley, acquired by his purchase at the constable’s sale, secured the property against a subsequent levy upon it, as the property of Robinson, the defendant in the execution. The court below held, that it did, and took from the jury, the consideration of the facts offered in evidence, to establish a fraud in the purchase by Ansley, at the constable’s sale. In reference to which this court said, “ we will not undertake to pass judgment upon the acts and declarations of the claimant, (Ansley,) in directing the slave to be levied on, then appearing on the day of sale, exhibiting his mortgage, and forbidding the constable to proceed, in consequence of which the slave sold for about one-eighth part of the sum he would otherwise have commanded. But the existence of these facts, are of such a character, that it should have been left to the jury, to inquire, whether the claimant was influenced by integrity of purpose, or whether his intention was to defraud the creditors of Robinson, by purchasing the slave at a depreciation.” It is evident from this extract, that the cause was sent back to have a trial upon the boncijides of the purchase at the constable’s sale. If the claimant used his mortgage, with the intent to defraud the creditors of Robinson, he can derive no benefit from his purchase — the sale is void. It certainly was not the intention of this court, in the decisions referred to at the present term, or in any previously made, to decide that an intention to defraud creditors, would not vacate a public, as [978] well as private sale. What we did. intend to say, was, that a bona fide mortgagee, giving notice of his mortgage, and purchasing the property at a reduced price, would not of itself be a fraud upon creditors, though he might intend by the notice to get the property at a less price than it would otherwise have sold for. The use of his mortgage, by a mortgagee, for the purpose of defrauding the creditors of the debtor, necessarily supposes an understanding, or combination with him. Thus, in this case, it appeared, that Ansley pointed out the property for levy to the constable, and then appeared at the sale, produced his mortgage, forbade the sale, and was thus as it appears, enabled to buy in the slave for much less than his value, adding his mortgage debt to the price paid at the sale. These, with the other facts in evidence, authorized the jury to infer, that the sale was a mere contrivance, got up between Ansley and Robinson, for the purpose of defrauding the creditors of the latter. The difference between this case, and that of Costillo Keho v. Thompson, is, that there was no fact in that case connecting Costillo with the defendant in execution. He merely gave notice at the sale of his deed, and if the effect, or design of giving such notice, was, that the property was sold at a reduced price, it was not necessarily a fraud upon Keho’s creditors. To be such, the deed must have been covin ous, or there must have been such a concert with Keho, as to create a trust between the parties. From this examination, it follows, that the testimony offered in evidence tending to establish the fact, that the sale was fraudulent, was strictly proper, and should not have been excluded from the jury. Although the general rule is well established, that judgments are not evidence, except between the same parties, or those in privity with them, yet it is equally certain, that evidence may be given of the fact of the judgment against third persons, not as evidence of the facts upon which the judgment is founded, but to prove the fact that such a judgment was rendered. For this purpose, and to prove the fact merely, that such a judgment was rendered, every judgment is evidence against the whole world. See this subject considered by Mr. Starkie, 1 vol. 188. [979] The evidence of unsatisfied judgments against Robinson, was competent testimony, to raise the presumption of his embarrassed condition, much more satisfactory indeed, than proof of the reputation of facts, or circumstances, from which insolvency may be inferred, which would be admissible in such a case. [Lawson v. Orear, 7 Ala. 784.] The ancient common law method of perpetuating judgments, was by engrossing the proceedings on parchment,, which is called the judgment roll, and is the record, and the only evidence of the judgment. Rex v. Smith, 8 B. & C. 341; Porter v. Cooper, 6 Carr. & P. 354; Ib. Rex v. Bowman, 101. In most of the States of this Union, the ancient common law judgment roll has gone out of use, or rather was never adopted, and other methods have been devised to perpetuate the judgment. In this State we have a statute, (Clay’s Dig. 144, § 7,) making it the duty of the clerks of the several courts, “within three months after the final determination of any suit, or prosecution, to make up and enter in well bound books to be kept by him for that purpose, a full and complete record of all the proceedings in such suit or prosecution.” This is doubtless the final record, answering to the judgment roll of the common law. Until this record is made, the papers of the cause must of necessity be evidence of the facts they contain, but when this necessity ceases, by the enrolment by the clerk, it becomes the final record of the cause, importing absolute verity, and is not only conclusive evidence, but the only legal evidence of the judgment to be established by the production of the record itself, an examined copy, or a copy attested by the clerk. Whilst the papers and proceedings are in fieri, they are quasi records, and with us, have always been considered the highest evidence of the facts they import. By a statute of Ohio, it is provided, “ that the clerk of each court, shall in vacation, make a complete record of the writ, recognizance of bail, pleadings, orders, judgments, or decrees, in each case finally determined at the preceding term, in a book provided for that purpose ; which record shall be signed by the President, or psesiding Judge of said court, at the next succeeding term of said court.” This statute has adose resemblance to [980] ours, and in its construction, it has been held, that the record when made, is conclusive, and cannot be contradicted by the minutes of the court. [Harvey v. Brown, 1 Ohio Rep. 129.] And that until such final record is made, the minutes of the court and papers in the cause, are legal evidence. [State v. Davidson, 6 Id. 251.] The original papers which were offered in evidence, were not legal evidence, if the final record in these cases was made by the clerk. How that fact was, does not appear in the bill of exceptions, as no reason was offered for their rejection. We must therefore presume that such was not the fact, as otherwise, if the objection had been made, either the final record would have been produced, or the fact distinctly stated, that it had not been made up. It is the duty of parties complaining of error to point it out distinctly, upon the record. From this examination it appears there is no error in the record, and the judgment must be affirmed.