Means v. Feaster

The opinion of the Court was delivered by Wright, A. J. The case, being strictly one for equitable relief, was tried by the Judge. He did not think it necessary to call a [256] jury to his aid, nor did either of the parties ask that the issues of fact might be decided through the intervention of one. To sustain the judgment of the Circuit Court, it is not necessary for the respondent to show that the testimony to that end was conclusive, or that this Court would have reached the same result. If there was evidence sufficient to warrant the judgment of the Court below on the facts we should not overrule it, even if a clos$ and careful examination might lead us to believe that the weight was the other way. The judgment of the Court on the facts must be accepted and treated as the conclusion of a tribunal not only vested with the power to pass upon, but, by reason of its position, having a better opportunity to judge of the credibility of the witnesses through whose testimony they are received. In a case on the equity side of the Court we would feel ourselves at greater liberty to review the facts upon which the decree rested than we would be when they have been passed upon through the verdict of a jury. Over the last our jurisdiction is of a different and more limited character. It is proper to separate the questions which we' consider involve facts from those of law. Whether the appellants had knowledge of the purpose and intent of the execution of the conveyances, was a fact to be collected from the whole evidence. It is not, by any means, however, certain that, so far as they may be regarded void under the Statute of 13 Eliz., C. 5, as made to delay, hinder and defraud creditors, the Judge was right in supposing that question was to be solved as one purely of fact. Fraud is a mixed question of law and fact, and the mode by which its prevalence is ascertained in Courts of justice depends on well recognized and established principles. Exception is taken to the admission of the declarations of Andrew Feaster, testified toby the witness, Annette Feaster. It is enough, as to their mere admissibility in this case, to say that they were introduced without objection. How far such declarations may be competent, would depend entirely on the time they were made. If, at the time of the conveyance, when the grantor had title, or at a period when they can be held to constitute part of the res gestae, they may be received. — Heard vs. Halford, 5 Rich. Eq., 128 ; Kittles vs. Kittles, 4 Rich., 422 ; Renwick vs. Renwick, 9 Rich., 50. As they were introduced without objection, any consideration of their mere competency is precluded. The weight that was to attach [257] to them, as affecting the mind of the Judge, was a matter entirely for him, increasing or weakening, the one way or the other, the impression made on him by the whole of the testimony.- Even when competent, they should be received with caution. The appellants contend that, as matters of law, it is not alone sufficient to show an actual fraudulent intent, on the part of the grantor, to hinder, delay and defraud creditors, “ but that the purchasers, the grantees, were parties to the fraud, or had such a knowledge thereof as would make them equally participants therein or parties thereto.” “ Whether a conveyance be fraudulent or not, is declared by the Statute to depend upon its being made ” upon “ good consideration, and bona fide.” It must “ be both.” — Kerr on Fraud, 199. No matter how adequate the consideration, if it be not bona fide, it wants one of the main incidents to validity. It would be going very far to say that although a deed is executed on full consideration, yet if there be a fraudulent design by the grantor, it will nevertheless be void, although the grantee may be innocent of any wrong intent, and in no way cognizant of any wrong motive. It is not required that the mala fides of the transaction should be established by positive proof. The complicity of both parties may be inferred from the circumstances. Here the whole property of the father was conveyed to his children by separate deeds at the same time, pending suits by .creditors. No complete and entire surrender of the property made — the children, or some of them, living with the grantor. These were among the facts from which the Judge might properly conclude that it was but a concocted scheme for the defeat of creditors. The exception to the plea in analogy to the Statute of Limitations cannot defeat it. The Statute runs for four years from notice, or discovery, of the fraud, and the onus of shewing want of notice is not on the plaintiff. The defendant, in order to avail himself of the Statute, must show that the plaintiff had notice four years before the filing of the bill. — Shannon vs. White, 6 Rich. Eq., 96 ; Godbold vs. Lambert, 8 Rich. Eq., 155. The recording of the deeds is only notice of their execution and the contents. In Godbold vs. Lambert the Court said that the proposition that notice of a deed is notice of the fraud “ cannot be sustained — there is no rationality about it.” It is not necessary to consider whether any notice of the fraud by the Commissioner, the officer of the Court, to whom, in his official capacity, the bond was payable, could [258] affect the parties interested in it, for there is nothing in the evidence to show any such notice. Even if it had been proved, it is not easy to perceive how it could have operated to defeat the rights of those for whose benefit the bond was held. The motion is dismissed. Moses, C. J., and Willard, A. J., concurred.