Boutwell v. McClure

[676] The opinion of the court was delivered by Redfield, Ch. J. The only questions in the present case arise upon the claim of the claimant. The facts reported by the commissioners show that the claimant by an arrangement between him, the principal debtor and the trustee, was agreed to be held out as the real owner of the property, which in fact belonged to the principal debtor, and that the claimant was to sell it to the trustee and take his note for the price agreed, one hundred ánd ninety dollars. This arrangement was carried into effect and is one which is void as to the bona fide creditors of the vendor, existing at the time, but is entirely valid as to the parties to it. The plaintiff claims to hold this property on the ground that he is a bona fide creditor of the vendor, of a date anterior to the claimant’s note. This the claimant offered to show was not the fact, by proof, that this suit was commenced, and is prosecuted for the sole benefit of the defendant. This testimony was not received. In this we think there was error. This was a material question in the case, and unless established in favor of the plaintiff, all the other testimony is of no avail. It is the very cardinal point, the pivot upon which the whole case turns. The judgment upon the plaintiff’s claim in this action, whether rendered before or after the claimant’s appearance, concludes nothing upon this question. In all such cases there is likely to exist the form of a. contract, of a date early enough to accomplish its purpose. And it is not uncommon that this contract assumes the more solemn form of contracts,' such as that of a promissory note or a judgment of a court of record. But in either case they are of course only conclusive upon the parties to such contracts. Upon any questions arising in regard to the creditor being bona fide such, at a particular date, and continuing such to the present time, the contract is but prima facie evidence of the fact. It is always competent to impeach the debt, either as to it its bon,a fide character, its date, or its continuance. For although the debt once existed, and of a date early enough to override the plaintiff’s claim, yet if it has been extinguished by payment on the part of the debtor, it sinks at once into the com [677] mon mass of his assets, and can not be subsequently kept on foot, as the debt of a bona fide creditor. If attempted to be prosecuted by the debtor himself, or for his benefit, it stands in no more favorable light than a direct claim on his part against the claimant, which we have said cannot prevail in the present case. The remaining question is in regard to the extent of the jurisdiction of the commissioners, for there does not seem to be any satisfactory evidence in the present case, that the claimant waived any right to object to this mode of trial. He seems to have protested against the jurisdiction of the commissioners, at the earliest moment of distinct knowledge that <any such claim was to be set up. It is certain the statute of 1853 does not,'in terms, confer upon the commissioners any jurisdiction to try and determine the facts in such cases, so far as the claimant is concerned, and a majority of the judges, who heard this ease, incline to the opinion that the commissioner has no such jurisdiction. If the question were submitted to my own determination, I should have some difficulty in coming to that conclusion. The judgment of the county court is reversed, and the ease remanded.