Harrell v. Mitchell

BRICKELL, C. J. A reexamination of a witness, after the evidence has been published, a hearing had, and final — 277 — decree rendered, it is said by Chancellor KENT, was never permitted, “ merely to alter or correct testimony, after the cause has been heard and discussed, and decided upon the very matters of fact to which that testimony referred. It would be setting a most alarming precedent, and would shake the fundamental principles of evidence in this court.” — Gray v. Murray, 4 John. Ch. 415. In Johnston v. Glasscock, 2 Ala. 249, an application was made to this court to modify a decree of reversal, so that new evidence could be taken in the court of chancery, to explain and correct discrepancies in the evidence, these discrepancies having controlled largely the determination of questions of fact involved; the application was refused, the court remarking: “ It is sufficient to determine us to refuse this petition that if the motion had been addressed to the chancellor, after the decree it should not have been allowed.” The rule in courts of equity, disallowing except under very special circumstances, the examination of witnesses after the publication of the evidence, even before hearing and decree, is founded on the soundest policy and highest wisdom, and it is feared that it is not enforced as rigorously as the ends of truth and justice require. It is not only a safeguard against fabricated evidence, but it quickens and keeps alive the diligence of suitors. “ It is of great importance in the administration of justice, and ought to be constantly inculcated upon suitors, that they must bestow diligence in the prosecution and defense of their suits, and that every step in the progress of the cause, is to be taken orderly and in due season, and that though the courts are indulgent to mistakes and unavoidable accidents, yet they can not be so to the mere negligence or wilful defaults of parties, which only tend to hinder, fatigue and oppress each other.” — Hamersly v. Lambert, 2 Johns. Ch. 432. The chancellor could properly and ought to have refused the rehearing, and the order for the reexamination of Moore. The alteration and correction of his testimony on a point which had been “ critically discussed in court, and the bearing and effect of every part of it understood and judicially settled,” was unauthorized according to the authorities to which we have referred. It opened “ a door to fraud and. perjury, by holding out or encouraging inducements to supply insufficient evidence, or to withdraw or explain away that which has been oppressive.” In this instance it may be there was not, and we would not be understood as intimating there has been, either fraud by the party reexamining, — 278 — or perjury by tbe witness; but if tbe practice pursued were tolerated, an unscrupulous suitor and witness, would find the temptation and the opportunity. The order having been made and the reexamination had, it is not matter of surprise, that the party obtaining the order, should have endeavored to convince the witness of his error, and to obtain from him testimony, which if it did not contradict, would neutralize or weaken the force of that he had already given, the bearing and effect of which the court had declared. That witnesses maybe saved from such influences, is one of the reasons on which the rules disallowing a reexamination is founded. We are satisfied the second deposition of Moore was properly suppressed; and the chancellor could have gone further and rescinded the order for his examination. Where creditors of a vendor, or of a grantor, assail a sale or conveyance he has made, as intended to hinder, delay and defraud them, the fact that at the time of sale, suits were pending against him, or that he was apprehensive suits would be commenced, and his general pecuniary condition, are facts of importance, they are permitted to prove. The value of the evidence depends upon its connection with other facts, and of the evidence of good faith, and fairness in the transaction, which may be given in support of it. The certified record from the court of probate, showing the liability of the grantor, as the surety of Walker, and the proceedings for the settlement of Walker’s administration, pending when the conveyance was made, was admissible evidence. If these proceedings ripened into decrees against Walker, such decrees were causes of action against the grantor, on which suits at law could have been immediately commenced. Or on a return of execution against Walker, no property found in whole or in part, execution could have been issued against the grantor. The insolvency of Walker, would have increased the grantor’s apprehension of suit or proceedings against himself, and of the fact there could be no better evidence, than judgments rendered against him, and the return of executions issuing thereon. 3. It is very clearly shown, we may say the fact is not questioned, that the conveyance now impeached, was of all the visible property of the grantor, subject to execution, and that when it was made, and from a date anterior, the close of the war, and the emancipation of slaves, he was insolvent. It is also shown clearly, we think, that his son, the grantee, was apprised of his insolvency. Their relationship, the gen — 279 — eral control of the business of the grantor, in consequence of his ill-health, which was entrusted to the son, the number of years after he became of age, during which he lived with, or near the grantor, and the mutual confidence they reposed in each other, are facts from which knowledge of the grantor’s insolvency can justly be inferred. Here, then, are indicia, or badges of a fraudulent conveyance, and bona fide creditors have the right to require, that these shall be explained, and all unfavorable presumptions arising from them repelled by evidence,yirsi, that the conveyance is founded on an adequate, valuable consideration paid or secured to the grantor. — Crawford v. Kirksey, 55 Ala. 293; Hubbard v. Allen, 59 Ala. 283. In the absence of clear and convincing evidence of this fact, the right and equity of the creditor must prevail. The evidence of the fact lies within the knowledge of the grantee; and the fact was of such recent occurrence, there could be no difficulty in producing it. It is so easy for parties standing in the relation of the grantor and the grantee to feign a consideration for the transfer of the property of the one to the other, and to fabricate the evidence of its payment, that the transaction can not be sustained, unless it is shown there was a real adequate consideration actually paid, and whatever there may be, not in the ordinary or usual course of such transactions, should be fully explained. When as in the present case, the consideration is large, amounting to several thousand dollars, there should be clear proof by the vendee, if his ability to purchase is questioned, of his means, or of the source from which he obtained the money. The absence of evidence of the disposition made by the grantor of the money it is alleged he received, becomes a material circumstance. Clear evidence of ability to make the purchase, is vital to sustain the transaction against creditors whose right to appropriate the property of the grantor to the satifaction of their demands is clear, and founded on law and good conscience. — Bump, Fraud. Con. 92. Without noticing the evidence in detail, we concur with the chancellor, that it is insufficient to establish the fact of payment. It may be the vendee had accumulated some money, but his evidence of the source from which he obtained the amount paid the vendor in the presence of witnesses, is too vague and indefinite to support a transaction attended with the indicia of fraud, which attend the conveyance to him. Where the money had been kept, if he had it on hand for any length of time prior to the purchase, could have been easily proved. Or, if not on hand, and it was obtained for — 280 — the purpose of making the purchase, the persons from whom he obtained it, ought to have been examined. Some clear, satisfactory evidence that it was his money, not mere general statements as to the business in which he had been engaged, and the profits derived from it, it was his duty to have given. Not only is the evidence vague and indefinite as to the sources from which he obtained the money, but there is an absence of all evidence, as to the disposition made of it, by the grantor. He has not invested it in the purchase of other property which could be reached by his creditors — he has not applied it to the payment of debts, or if he has, he fails to nominate the creditors to whom it was paid, — he has it not in possession — and it is not credible, nor is it pretended, that in the time elapsing between the payment of it, and his examination as a witness, it had been expended in the support of himself and family. Under these circumstances, it is impossible to support the conveyance against creditors. Another fact is unexplained, which casts suspicion on the transaction, and which could be x’emoved only by clear evidence of fairness, good faith and an actual consideration, really paid, and justly disposed of by the grantor. In a short time, the grantee without valuable consideration, so far as is shown by evidence, conveys to his brothers, and brother-in-law, parts of the lands; himself, brother and sistex, being the only children of the grantor. A division of the lands, all his estate of any value among his children, if he had been unembarrassed, and free to convey without á valuable consideration, is the disposition, the grantor would probably have made, at his advanced age, and in his state of health. That is the result, following the conveyance interposed to defeat the claims of his creditors, and how, and why it followed, is unexplained. The relationship of. the grantor and grantee, the known insolvency of the grantox’, the pexxdency or apprehension of suits, on pecuniary debts or liabilities then existing, are bxxt circumstances, and of themselves, may not justify the conclusion that the sale and conveyance is fraudulent. Whatever of unfavorable presumption may be drawn from them, is weakened and generally removed by the 'evidence of a full consideration actually paid. — Montgomery v. Kirksey, 26 Ala. 172. But as in the first instance, before the conveyaxxce can be impeached, the creditor must prove the existence of his debt; when it was contracted, or that there were then cx’editors who could be hindered or delayed by it, the grantee to support the bonafides of the conveyance, when the indebtedness — 281 — has been established, must prove that it is supported by a valuable consideration. In other words, claiming under the conveyance in opposition to the rights of creditors, he must prove a consideration adequate, of the kind expressed. If it be money paid as the price, the payment of the money must be proved; if it be a debt of the grantor extinguished, the existence and consideration of the debt must be proved. The circumstances surrounding the parties, the relationship existing between them, their subsequent conduct may demand higher and more convincing evidence of the fact of consideration than would be exacted if no relationship existed between them, if there were no circumstances surrounding them exciting just suspicion, and their subsequent conduct was consistent only with a fair sale and conveyance for a real consideration. — Bump on Fraud. Con. 96-8; Hubbard v. Allen, 59 Ala. 283. In criminal and in civil cases, presumptions arise from the connection of parties, the circumstances surrounding them, the motive these circumstances and the connection may create, which become conclusive, if unexplained. When explanation lies within the power of the party, the presumption strengthens, if it is not as full and clear as the party could and ought to have made it. Hawkins v. Alston, 4 Ired. Eq. 137; Satterwhite v. Hicks, Busbee (Law), 107. It is true, fraud is never presumed— that it must be proved by clear and satisfactory evidence, and when a transaction is susceptible fairly of two constructions, the one which will support and free it from the imputation of impurity of intention will be adopted. Fraud, like crime, may nevertheless be proved by circumstances — it is seldom capable of being proved otherwise — and the number or character of the circumstances which may amount to proof of it can not be defined. Each case depends largely on its own particular facts. 4. There is however an error in the decree of the chancellor which must be here corrected. After the conveyance to Whitmell F. Harrell, and before the filing of the bill, it is averred in the bill, he had conveyed parts of the land to his brother-in-law, and to other persons. The parts of the lands so conveyed are not designated, nor are these grantees made parties. They were necessary parties, if it was intended to subject the lands conveyed to them, and in their absence, it was erroneous to render a decree, under which the lands conveyed to them could be sold. The lands conveyed by Whitmell H. to his wife and children, are particularly described in the amended bill, and they are made parties de — 282 — fendant. The conveyance to them is voluntary, and their right is not superior to, but is infected with the taint of the title of the donor. These lands, and the lands averred to remain in possession of said Whitmell H., could properly be condemned to the satisfaction of the demand of the appellee. The remaining lands could not be, in the absence of the parties to whom they had been conveyed. In this respect, the decree of the chancellor will be here corrected, and as corrected, affirmed. It does not appear that the attention of the chancellor, or of the appellee, was directed to this error, and it would not be just under the circumstances, the appellee should be taxed with the costs of this appeal. Let the costs of the appeal be taxed against the appellant.