Mixell v. Lutz

Mr. Chief Justice Walker delivered the opinion of the Court: This was a bill in equity, filed for the purpose of having a deed canceled, which had been made to the son of Phares Mixell, who was a minor. It appears that the father negotiated the purchase of the land, paid the money and had the conveyance made to the son, which is claimed to have been fraudulent and void as to creditors, complainant claiming to be one of the number. It is alleged that he recovered a judgment at law against Phares Mixell, upon which execution was issued and returned no property found. The deed was executed in September, 1852, and the judgment was recovered in September, 1861, about nine years after the conveyance was executed. It abundantly appears from the evidence, that George P. Mix-ell, the minor, to whom the conveyance was made, paid no portion of the purchase-money. But this, in itself, does not establish fraud, unless it also appeared that the deed was so made for the purpose of hindering and delaying creditors of the father. There is no evidence that the father owed any other person at the time, and it is denied that he was indebted to defendant in error. If the conveyance was made before the indebtedness was incurred, then there was no, fraud, as there was no design to hinder or delay creditors at the time; and the credit was not given upon the supposition that this property could be rendered liable for its payment. But if there were, at the time, other creditors, and the conveyance was made to defraud them, and the father owed the defendant in error nothing, we are at a loss to perceive what right he has to complain. They no doubt could have filed a bill and had the deed canceled and the property subjected to the debts of the elder Mixell, and if more than sufficient to pay them and defendant in error had reduced his debt to a judgment before the surplus had been disposed of, he might, no doubt, have subjected it to the payment of his debt. But the deed was valid and binding until avoided by some creditor who had been defrauded. Persons afterwards giving credit have no right to complain, as they did not look to the property as security for their debts. We now come to the question whether this debt existed at the time the conveyance was made. The father and mother both testify that in 1852, after defendant in error had recovered from his sickness, the parties looked over their accounts, and the balance which was found to be due to defendant in error was by agreement to be applied to pay the physician’s bill, and to pay Mrs. Mixell for nursing him in his sickness. Phares Mixell also testifies that he borrowed no money of defendant in error to pay for the land, as alleged in the bill, nor was any of his money paid for that purpose. Both the father and mother of plaintiff in error testify that defendant in error advised the purchase of the land for George, and that he agreed to take the other half of the quarter section, but failed to do so for the want of means, which he had expected to collect at St. Louis. They also testify that the money paid for the land belonged to George’s mother, and came to her from her father’s estate. And this evidence is corroborated by the testimony of other witnesses. If this evidence may be relied upon, no portion of the money of defendant in error was paid for the land, nor was Phares Mixell indebted to him when the conveyance was made. It was, however, objected that the father and mother were incompetent as witnesses for the son. The father was a co-defendant, but that of itself is not sufficient to disqualify him. The rule is, that a defendant to a bill may be examined by his co-defendant if his testimony does not affect his own interest; ■or in case his interest is equally balanced between the parties, he is competent. In this case the father’s interest could not be injuriously affected by the decree. If a decree was rendered subjecting the land to the payment of his debt, it would be an appropriation of so much of the son’s property for the satisfaction of his liability, whilst if it was not rendered liable, it left this debt unpaid. His interest was then against his co-defendant, and in favor of defendant in error. If his co-defendant ■saw proper to call him against his own interest, no reason is •perceived why complainant should have a right to complain. The practice, however, in a court of chancery, has never authorized the complainant to testify in his own behalf any more than at law. We are aware of no adjuged case which sanctions such a practice, and we have no power, even if so inclined, to change the rule. It is not even contended that the practice authorized complainant to testify in his own favor. It is contrary to the practice, and his evidence must be rejected as unauthorized. We do not discover that the evidence in the case established any fraud in the transaction, and the decree of the court below must therefore be reversed and the cause remanded. Decree reversed.