Lane v. Kingsberry

Scott, J., delivered the opinion of the Court. The first point made by the plaintiff in error is, that there being a regular judgment on the record in his favor, and that not being vacated or set aside, it was irregular to enter another judgment in the same cause. No doubt the better practice would be in all cases where it is practicable, merely to enter the verdict of the jury, and suspend the entry of the judgment until the expiration of the time within which an applica [408] tion for a new trial can be made; there would be but few cases in the courts of St. Louis in which this course could not be adopted; but in many counties of the State, the courts not sitting more than two or three days, it could not be done. But this objection falls within the influence of the maxim, qui dat fmem dat media ad fmem necessaria. As the new trial could not have been granted, but by setting aside the former judgment, the granting of the new trial impliedly set aside that judgment. Numerous instances might be produced, in which it has been held that, where a step has been taken in a cause, which could not have been formally done without vacating a previous order, the courts will hold, that such order was impliedly set aside by their subsequent action. Field vs. Holland, 6 Or. 22; Jones vs. Cox, 7 Mo. Rep. 174. As to the objection of the defendant in error, that the exception to the exclusion of the records in evidence was not properly saved, we must say that in our opinion the mode adopted for that purpose was hypercritically correct. The bill of exceptions states, that the defendant offered in evidence the four following records of judgments recovered against A. G. Edwards and Lucien D. Cabanne, which were excluded by the court; the records are then set out, and it is subjoined, to which opinion of the court the defendant excepted. As the records were offered in mass, and so excluded, but one exception was necessary to the action of the court. No opinion of this court will warrant a supposition that it indulged in such niceties as this. It has been asserted here, and will be maintained, that a party wishing to avail himself of any error of the court, in any opinion delivered during the progress of a trial, must except to such an opinion when it is given. He will not be permitted to acquiesce in an opinion when it is given, trust to its favorable operation, and afterwards when a trial results against him, be allowed to go back and take an exception. This is a kind of speculation in which no court indulges its suitors. By not excepting to an opinion when first given, as it is his right to do if he believes it erroneous, a party is presumed to acquiesce in its correctness; and even though that opinion may be incorrect, yet consensus iollit errorem. It was never supposed, that though an exception is required to be made at the proper time, that it was necessary that the trial should be stayed until a formal bill is drawn up and signed. Such a practice would be extremely inconvenient, and would be productive of much unnecessary delay, as many exceptions are taken during the trial, which are afterwards abandoned, and frequently they are taken by the party who ultimately succeeds. It is sufficient that one [409] bill is prepared after the trial has terminated, containing all the exceptions which were saved by the party during its progress. There seems to be no dispute between the parties as to the law governing this case. The doctrine that a voluntary conveyance is not fraudulent per se as to existing creditors, though opposed by some, is sustained by a great weight of authority. The bona fides of every such conveyance, is a question of fact to be ascertained by a jury under all the circumstances attending it. Hinde’s lessee vs. Longworth, 11 Wheat.; Howard vs. Williams, 1 Bai. S. C. Rep. 575; Story’s Equity. The instruction given by the court contained the law applicable to the case. The first instruction asked by the defendant was properly refused, because it had been already substantially given. The second instruction was inappropriate to the facts of the case, as the deed to Kingsberry had been regularly acknowledged and recorded. The third instruction involves a contradiction. To hinder or delay creditors by a voluntary conveyance made for that purpose, is a fraud in law. If such a conveyance was made for such a purpose, it was in the eye of the law made with intent to defraud. Whether there was any depravity in the act, would depend upon the consciousness of the party doing it, and that is a question with which the courts have nothing to do. An exception arises on the rejection of the deed from Cabanne to Bogy in evidence. This deed made a post nuptial settlement on the wife of Cabanne, and was clearly voluntary, notwithstanding Cabanne may have received a large fortune by his wife. Having then made one provision for his wife, if a subsequent settlement is made, it is clear, that the first provision is a circumstance well, calculated to impart light on the motives which prompted the husband in making another. If the first settlement was a reasonable provision for the wife according to the state and condition in life of the husband, some reasons might be required why he was induced to make the second. Why was not all the property settled included in one conveyance? He possessed the property secured by the second deed at the time of the execution of the first. As to the suggestion, that it does not appear what was the value of the property settled on the wife by the first conveyance, it may be answered, that it has been repeatedly decided by this court, that it is error to reject a portion of evidence proper to establish a claim or defence, but not of itself sufficient for that purpose, although no disclosure is made by counsel of an intention to supply the deficiency. It is enough to secure its admission that the evidence offered is a link in the chain of testimony required to support a defence. What weight this rejected deed should have had with [410] the jury, is not a question for this court; it is sufficient to know that it was a proper matter for their consideration in forming their verdict. The next exception insisted on in the argument, arises from the rejection of the judgments in evidence. We see no ground on which they could with propriety be excluded. It appears that some of the debts for which the judgments were rendered, were due before the slaves were conveyed, and although they were satisfied, yet it was not until after that time. The circumstance that Cabanne was only liable as endorser, does not affect the question of the admissibility of the evidence. Although the notes on which some of the judgments were founded, bore date subsequently to the settlement, it might have been shown that the debts evidenced by the notes, existed prior to their execution. In determining the question whether a conveyance is fraudulent as to creditors, every matter tending to show the pecuniary condition of the debtor is admissible. The transactions of an individual so frequently running into each other, in order to ascertain his condition, his moneyed transactions about the time of his making a conveyance, sought to be avoided, must be inquired into; nor should they be rejected in evidénce although they may have occurred after a fraudulent conveyance, if they serve to throw light upon, or explain his previous conduct. In the investigation of questions of this kind, the courts should lend an unwilling ear to the objection of irrelevancy merely. If the evidence is merely irrelevant, it cannot affect the rights of the objector. The delay in hearing such evidence, is never as great as that caused by arguing the question of its admissibility. It is always best for the courts to err on the safe side. These remarks are only intended to apply to evidence, the sole objection to which is its irrelevancy; when its tendency is to mislead or improperly prejudice the minds of the jury, though irrelevant to the issue, it must of course be excluded. The fact that a debtor suffered himself to be sued about the time of the execution of a voluntary conveyance, is certainly a circumstance proper to be submitted to a jury charged with the inquiry whether that conveyance was fraudulent as to creditors. The other Judges concurring, the judgment will be reversed, and the cause remanded.