Bogert v. Phelps

By the Court, Dixon, C. J. Tbe record in this case does not present tbe question made and argued by tbe counsel for tbe appellant in tbe first point of their brief. It is not pretended tbat tbe warrant of attachment was bad on its face; nor tbat tbe county judge of Dodge county had not the power to issue it. These two things being conceded, it operated as a complete protection to the officer for all acts which he might lawfully do by virtue of it. It matters not how irregularly the county judge may have exercised the jurisdiction conferred upon him by law, or how far he may have departed from the directions of the statute; the respondent was not affected thereby. He acted ministerially under process good upon its face, and cannot be subjected to an action for what he thus did, on account of any defects or irregularities in issuing it, of which he was entirely ignorant. This principle is well settled. Savacool vs. Boughton, 5 Wend., 170; Sheldon vs. Van Buskirk, 4 Corns., 473. The application of this principle is the same, whether the action against him is brought by the party against whom the process issued, or by a total stranger. Neither can recover merely on account of defects or irregularities of which the officer had no knowledge. In case of an action by the party against whom process issued, the process itself, being valid on its face, constitutes a complete justification. In case of suit by another claiming title to the property seized, under such party, which title is contested on the ground of fraud, he must, in addition to showing that he acted under such process, show that he acted for a creditor. Where he acts under process of execution, this is done by producing the judgment on which it is issued. If it be mesne process, then the debt must be proved by other competent evidence. This proof, however, is required, not because it affects the process, or is in that respect necessary to protect the officer, but because it affects the title to the property in question. No one but a creditor can question the title of the fraudulent ven-dee, and hence he must show that the relation of debtor and creditor exists between the party against whom the attachment or execution ran and the person in whose behalf it was issued. It is a necessary link in the chain of evidence [93] by -which the fraud is to be established. Sheldon vs. Van Buskirk, supra ; Damon vs. Bryant, 2 Pick., 411. It is a .therefore, to suppose that because the action is brought by a [ stranger, the officer is deprived of the protection afforded by (process good upon its face; and that the door is thereby opened to its impeachment on account of a defective or irregular exercise of jurisdiction by the officer who issued it. The protective energy of the writ is not thus destroyed; but the assailing party must recover, if at all, not upon inform-alities and imperfections not appearing upon its face, but upon his superior right. If the officer shows process apparently good, and establishes title in the party against whom it issued, his defense is complete ; and it is not for the opposite party to recover upon matters of which the original defendant might have availed himself in that action, to abate or set the process aside. By producing an apparently good writ, and showing title in the defendant named in it, he establishes, as to himself, a lawful act by virtue of lawful process, which is all that can be required of him. In going, as it were, outside of his writ, and taking property which is claimed by a third person, he acts upon the supposition that a writ apparently good is so in fact, and assumes only the risk or burden of proving that the title is in the execution or attachment debtor, and not the additional one of showing that all the previous steps in the action have been regularly and properly taken. This is, in general, the extent of his liability, and it would be most unjust to make him responsible beyond it. The first position taken by counsel for the appellant is, that in order to enable the respondent to impeach the appellant’s title, which was derived from the attachment debtor, he must show that he represented a prior creditor of the latter. As has been already observed, this is no doubt a correct legal proposition, but it is not involved here. No question of the kind was made on the trial below. No objection was raised, no exception taken, nor instruction asked, which in any manner involved it; and the appellant cannot be allowed to shift his ground, and make jt here for the first time. We can review no questions which were not fairly [94] Presen^e<^ ^or consideration of tbe court before which the action was originally tried. If proper instructions had been asked and refused, and exceptions taken, it may be possible that the plaintiffs in the attachment suit would have been held not to be such creditors as could have impeached the sale to the appellant in this particular case. That they were creditors of the attachment debtor, is clearly proved; but it likewise appears that their demand was not due at the time the proceeding by attachment was commenced. What effect, if any, this circumstance has upon the question of fraud, it is unnecessary for us to consider. The evidence of this general relation of debtor and creditor was received without objection, and no legal question was made upon its sufficiency. Counsel seem to rely upon the exception taken to the introduction of the warrant of attachment as properly raising it; but it is manifest that it does not. The objections were, “ that the warrant did not agree with the summons, and that it did not appear that the summons was issued previous to its allowance.” These objections only went to the regularity of the proceedings; and, as we have seen, cannot be taken advantage of against the officer. The warrant, being good on its face, was a distinct and independent item of evidence, which the respondent was entitled to introduce; and the only objection which could have been taken to its introduction was as to the order of time in which it was to be received. If such an objection was proper, it was not urged. Most of die testimony concerning the fraudulent nature of the transfer to the appellant, was received without opposition of any kind; and it does not appear that the attention of the court was called to the point here argued. We cannot, therefore, consider it. There was no error in the rejection of the written release of Robinson. The statute (sec. 106, chap. 137, R. S.), provides that any creditor or creditors to whom two or more persons are jointly indebted, either upon contract or the judgment of any court of record, may release one or more of the persons so jointly liable from such joint indebtedness; and such release shall operate as a satisfaction or discharge of such joint debt, only to the amount of the proportion which [95] tbe person so released ought in equity, as between himself and the other joint debtor or debtors, to pay; and as to balance of such joint debt, the contract or judgment, as the 'case may be, on which the same is owing, shall be and re-jmain in full force as to the joint debtor or debtors not so ^released, and may be enforced against him or them alone the same as if such joint contract or judgment had been made by or rendered against him or them alone; provided, that if the amount paid by the person released in any case, to procure his release, shall exceed the proportion of such joint debt which he, as between himself and his co-debtor or co-debtors, ought to pay, then such joint debt shall thereby be satisfied to the extent of the sum actually paid to procure such release ; and provided also, that if the person released is only a surety, his release shall operate as a payment of such joint debt to the extent of the money actually paid by him to procure the same, and no farther.” Eobinson and John M. Hewes were joint debtors. The release of the former did not necessarily discharge the latter. To give it that effect, one of two things must be shown: either that, as between them, there was, in equity, nothing due from Hewes to the attaching creditors, or that Robinson, to procure his release, paid the entire amount of the joint debt. The burden of showing these conditions was upon the appellant; and as Jie made no offer to do so, the release was properly rejected. Without proof of them, it was wholly immaterial. • The declarations of John M. Hewes to the witness Burgetj made on the 18th of June, five days after the sale, were improperly received; and for that reason the judgment must be reversed. The declarations of the vendor are received as evidence to establish fraud in him, but not in the vendee. In order to affect the latter, his knowledge of and participation in the fraud of the vendee must also be proved. The declarations of the vendor, to be admissible, must be a part of the res gestae. When possession is delivered and the transfer complete, they must be made at or near the time of sale. It may not, perhaps, be material whether they are made shortly before or shortly after the sale, if made so near the time of it as fairly to indicate what was then passing in [96] his mind. They are facts connected with tbe main transac-which tend to show the motive of the vendor, and are more or less weight according to the circumstances of each particular case. 2 La. An. Rep., 482; 3 Martin (N. S.), 23; 41 Me., 153. If they are so remote as not to be indicative of the thoughts of the vendor at the time of the sale, or that they may have been deliberately made for the purpose of disparaging the vendee’s title, they are inadmissible. Here they were made at a different piace, and so long after the sale as to make it clear that they should have been excluded. Judgment reversed, and a new trial awarded.