Warner v. Percy

The opinion of the court was delivered by Bennett, J. This was an action of ejectment, and the plaintiff claimed title under a warrantee deed from N. Woodward, executed in February, 1842; and the defendant claimed title under a deed from L. E. Pelton, executed February 3, 1847; and Pelton’s claim [158] of title was under Woodward, by means of a judgment and the levy of an execution, subsequent to the plaintiff’s deed. The plaintiff called Woodward as a witness, and the first question is, whether he was a competent witness, when called by the plaintiff. The case of Adm’r of Seymour v. Beach et al., 4 Vt. 498, establishes the position, that he would not have been competent, if called by the defendant. The witness would have had an interest in establishing Felton’s title under the levy, as he thereby satisfied his own debt. See Bland v. Ansley, 5 B. & P. 331; and, under the authority of Adm'r of Seymour v. Beach et al., this interest would not have been balanced by reason of his covenants in the plaintiff’s deed. It is held in that case, that the witness could not be subjected to an action on his covenants in his deed, notwithstanding the title under the levy prevailed over the title under the deed upon the ground of fraud. From that case it follows, that if the interest of the witness were not balanced in the present case, it was against the party calling him; and of course the witness was competent. It seems, also, by the bill of exceptions, that the plaintiff, under objections from the defendant, was permitted to give evidence tending to prove, that, at the time of the conveyance by Woodward to the plaintiff, he (Woodward) had claims to a considerable amount, in the language of the exceptions, against Pelton for property delivered him and for services rendered him; and the question is now presented for our decision, whether such evidence was admissible, for the purposes for which it was received by the county court. It was an important point, on the part of the defence, to show the motive, which induced Woodward to execute the deed to the plaintiff. Was it done with the intention to defraud Pelton ? We agree with the county court, that if Woodward had, or supposed that he had, legal claims against Pelton, sufficient to meet whatever Pelton had against him, it has a decided tendency to rebut any presumption of a fraudulent intent in Woodward to avoid the rights of Pelton. The reason must be obvious. The mutual claims might be made the subject of a set-off, and by this means be mutually cancelled. We also agree with the county court, that this was proper evidence on the question whether Woodward was really indebted to Pelton at the time when the plaintiff received her deed, — that is, in such a sense, that Woodward could by a fraudulent conveyance [159] avoid any substantial right of Pelton. The plaintiff is not concluded by the judgment against her grantor, especially as it is subsequent to her deed. As between Pelton and Woodward, the judgment is conclusive, so far as relates to Pelton’s title under his levy; but, so far as the plaintiff is concerned, how far back the indebtedness extends and what was the relative state of the mutual claims of the parties to the judgment must be open to inquiry. We see no possible objection to any‘part of the charge of the court, so far as detailed. The charge gives Pelton the right to levy upon this property, provided the conveyance was made to the plaintiff in fraud of any of Woodward’s creditors; and we think it as favorable to Pelton, as any one can claim it should have been. The judgment of the county court is affirmed.