Kittering v. Parker

G-ookins, J. This was a creditor’s bill, brought by Parker and others, to set aside a conveyance of land, alleged to have been fraudulently made by Stewart to Kittering, and to subject the-land to the payment of Stewards debts. Stewart made default. Kittering answered denying the fraud; The Circuit Court sustained the bill upon the proofs, and set aside the conveyance as fraudulent. Kittering being dead his representatives prosecute this writ of error. The bill was filed March 20, 1846. It states that on the 10th of September, 1838, Stewart, jointly with Isaac and Henry High, made to Parker and Baity, the principal creditors, his notes amounting to 1,373 dollars, due 25 days after date. That suit was brought on these notes, August 12, 1839, in the Warren Circuit Court; — 45 — process was returned “not found,” as to Stewart; the cause was removed by change of venue into the Fountain Circuit Court, where judgment was recovered against the Highs, at May term, 1842, for 1,672 dollars and 72 cents. That in July, 1844, the lands of the Highs were sold on execution, by the sheriff of Warren county, which, after satisfying' some prior liens, and a part of the judgment in favor of Parker and Daily, left a balance of 'over 530- dollars, which is still unpaid. That this was all’ the property the Highs had, and they are notoriously insolvent. That John Jennings, another creditor, claims a debt due him from Stewart, June 1, 1839, of 300 dollars, for goods sold,' &c.j and Levi Jennings, another plaintiff, claims against Stewart a judgment of 7 dollars and 28 cents, recovered June 29th, 1839, before a justice of the peace; and .Levi and John Jennings, claim a judgment recovered against Stewart at the same time, for 12 dollars; and David and John Jennings, also, at the same date recovered a like judgment against Stewart for 24 dollars and 46 cents; all of which are alleged to be unpaid. That while so indebted Stewart owned the land in question, which, as described, appears to contain about 200 acres. That on- the 24th of June, 1839, Stewart and his wife, with intent to defraud Stewart’s creditors, conveyed the land to Kittering, who, when he received the conveyance knew of the existence of these several debts. That the lands were then worth 3,000 dollars, and that although the consideration mentioned in the deed was 1,500 dollars, the amount really paid was only 700 dollars. That the deed was executed late at night, Kittering being present; that immediately on making the conveyance Stewart absconded, and left the State; that Kittering received it knowing his intention to abscond, and that he assisted him in his flight; and that Stewart has never returned, and has no property except the land, out of which to make the debts. Prayer that the defendants be required to answer upon oath, that the conveyance be set aside as fraudulent, and for geugral relief. — 46 — Kittering’s answer admits Stewards indebtedness as stated in tbe bill, but denies any knowledge of it, at tbe time of his purchase except from rumor, and says be did not know tbe amount, and that be supposed it would have been long since paid by Stewart and tbe Highs, who, be understood, owned a valuable farm and other property. He admits tbe conveyance to him of the lands in question,- but denies all fraud, and all knowledge of any fraudulent intent on the part of Stewart. He denies that the lands were worth more than 1,500 dollars; and states that be took tbe conveyance, subject to tbe lien of a judgment in favor of one Evans against Stewart, rendered at tbe March term, 1839, of tbe Warren Circuit Court, for 117 dollars and 78 cents; and another in favor of James and John W. Anderson against Forshay and Fleming, replevied by Stewart and one Brenner, on which a balance was then due of 622 dollars and 50 cents, one half of which Brenner agreed to pay if tbe principals failed to pay it, and be was to retain tbe other half, 311 dollars and 25 cents, out of said sum of 1,500 dollars to pay this amount, if it could not be collected from Forshay and Fleming, and the residue, being 1,071 dollars, 'be paid to Stewart. He states that executions having been issued on tbe judgments in favor of tbe Andersons and Evans, and levied upon tbe land, be was forced to pay tbe whole amount of them, Brenner having Refused to pay one half of the Anderson judgment. He states that be has paid in all 1,826 dollars and 28 cents for the lands, which is more than their value, and offers to convey them to the plaintiffs if they will refund what he has paid. He admits that tbe deed was executed at night, and explains bow it happened; denies that he had any knowledge of Stewarfs intention to abscond, or that he aided him in doing so'; and admits that Stewart has no property in this State subject to execution. This answer was filed October 5th, 1846. On tbe 21st of August, 1849, Kittering filed an amendment to Ms answer, in which he states that, besides the — 47 — incumbrances mentioned in Ms former answer, he had been obliged to pay a balance of 119 dollars and 50 cents, upon a mortgage covering a.part of the lands, made by Stewart to secure a surplus revenue loan, which he paid in 1841, but which he had forgotten when he made his former answer. The most direct testimony upon the question at issue, is the deposition of John Williams. It is long, containing fifteen closely written pages, and it is not easy to give a-summary of his evidence. The facts conceived to have a material bearing, are these: He states that he was present at the execution of the deed from Stewart to Kittering, and subscribed it as a witness. At Stewarts request, he had informed Kittering that he wished to sell Ms farm. Kittering offered 1,500 dollars for it, and Stewart replied that that was only just half what he had been offered by another; but he was then sick, and his creditors had sold his property, and they would sell his place. The witness and Kittering’s son went to the clerk’s office, to ascertain what liens were upon the land. The clerk informed them of the Anderson judgment and the surplus revenue mortgage. On their return with this information, a bargain was closed. It was then near night. Clinton, a justice of the peace, was sent for, to do the writing, who arrived after sunset. The examination of title papers and writing the deed uccupied until midnight. During the taking of the acknowledgment of the deed, the parties retired, when Kittering said to the witness': “ If I can hold this land I have made a fine trade.” Williams advised Mm not pay the money unless he thought he could hold it. Kittering expressed the opinion, that by the laws of Pennsylvania, he could hold the land, and the witness, that the laws of Virginia would save him, but said he was not acquainted with the laws of Indiana. They returned into the house, the deed was delivered, and the justice went away. The money which was paid, was counted by the witness, and amounted to 700 or 750 dollars, or at most to 800 dollars. As .soon as Stewart re — 48 — ceived Ms money, he said, “ I must fix and be off from here,” and proposed to the witness to carry him to St. Louis, which he declined. He applied to Kittering for .the loan of his buggy, to which he assented, on condition that it should be returned to him at Des Plains or Chicago. Stewart said, “The man that catches me I wish he may hang me.” Kittering replied, “Damn the dangerand a further remark of Kittering is given by the witness, indicating that Steioart might travel with speed. Stewart had other money besides that received from Kittering, and on being asked by the witness how much he had, mentioned the amount so received, and 100 dollars from other sources, and said that was not half he had. Kittering asked Stewart if he was not going to pay Parker some of that money. Stewart replied that he was not; that Parker had cheated others, &c. The witness went with Stewart to assist in putting his horse to Kdtering’s buggy; and in pretending to do so, deceived Stewart by pricking the animal in the flank, and making him believe it would not work in a buggy. Stewart then left on horseback, having appointed a meeting with the witness in Illinois the next day. Williams met him there, when Stewart addressed him in presence of the family where he was stopping, remarking, “You have been detained buying them cattle some time.” They went out, and after some conversation shook hands and parted, when Stewart left and has never returned. This witness, on cross-examination, stated that Kittering was hard of hearing, and that he had to speak loud to him to make him hear; that it was his understanding that the money paid by Kittering, and the liens on the land, amounted to 1,500 dollars; that John Kittering, in company with the -witness, called on Brenner, who promised to pay one-half of the Anderson judgment against For-shay and Fleming, if they did.not pay it, that the Evans judgment was not taken into the account as a lien on the land, Kittering not having been informed of it; that Forshay left in his hands canal scrip worth 300 dollars, to pay on the Anderson judgment, which was taken into — 49 — the account at the time of the sale by Stewart to Kittering; and that Xittering withheld the whole of the due of that judgment, after deducting the 300 dollars. Clinton testified that when he arrived at Stewarts, he found him in bed, complaining of being sick. Xittering and his son 'and Williams were there. The witness describes Stewarts manner in executing the deed, from which it is evident that he thought Stewarts sickness, in part at least, feigned. He saw no money paid. "When the deed was executed, Steioart called his particular attention to what he was about to say, and then stated, that besides the consideration in the deed, Xittering was to pay all the liens on the land. Xittering asked if justice’s judgments were liens, and was informed that they were not until filed and docketed in the Circuit Court. 'While he was writing, there was passing back and forth to the bed and whispering, but he could not say that the old man, Xittering, did so. This fact, and the circumstance that the three men, Xittering, his son 'and Williams were strangers to him, excited his suspicions that all was not right. He saw no money paid; and when the deed was executed, he went home and had not seen Stewart since. ’ ■ Brenner testified that Stewarts land was worth,, when he sold it to Xittering, 3,000 dollars, that Xittering had a. conversation with him, in reference to the execution of the deed and Stewarts leaving, in which he stated that ■ while the justice was writing, Stewart was in bed very sick, but as soon as the justice left he got up and began to bustle about; that 'he paid Stewart his money, who left the same night; that he was to give 1,500 dollars for the land, about 800 dollars of which he retained to discharge liens. He denied having promised to pay one-half of the Anderson judgment. Xittering had brought several suits against him to, recover one-half the amount he had paid on it, but had failed to recover. It was proved' that Xittering paid 622. dollars and 50 cents, on the execution in favor of the Andersons,. September 6th, 1839; that he paid the JEvans judgment, — 50 — October 15tli and 30th, 1839, 117- dollars and 78 cents debt, and 16 dollars costs; that in July, 1840, and August, 1841, he discharged the surplus revenue mortgage, amounting to 119 dollars and 50 cents, making in all 875 dollars and 78 cents, besides the sum paid down at the purchase. The defendant examined four witnesses, touching the value of the land at the time, of his purchase, one fixing it at 1,700 dollars, and the other three at 1,500 dollars. He also proved by John Williams, that on the 3d day of September, 1840, he bought of Isaac High his lands for 2,300 dollars. The conclusion at which we have arrived, has made it necessary to rehearse the evidence in this cause very much in detail, though much less so than it was delivered. There are some circumstances connected with the alleged fraud which must be taken as established, among which are the indebtedness, of Stewart and his absconding. It is also very evident that Kittering has not set forth truly in his answer, the consideration paid for the land. The amount paid on the Evans judgment, exclusive of costs, was 117 dollars and 78 cents, and on the Anderson judgment, 622 dollars and 50 cents, one-•half of which, he says, he was to pay, being 311 dollars :and 25 cents. These two sums make 429 dollars and 3 cents, which, deducted from 1,500 dollars, the price of the land, leaves 1,070 dollars and 97 cents; and he says he paid Stewart, in money, 1,071 dollars. It appears, however, from the proof, that Kittering had no knowledge of the Evans judgment until after his purchase; and the sheriff’s return shows that 622 dollars and 50 cents was the precise sum long afterwards paid on the Anderson execution, including interest and the accruing costs. The amount of money stated to have been paid was, therefore, a forced balance, made upon data not in the possession of Kittering at the time of the transaction. This fact is stated that full weight may be given to every circumstance clearly appearing in the cause to sustain the decree. " — 51 — Stewart’s default establishes the fraud as to him; but that does not affect Kittering. Perhaps the testimony Williams would, if that of one witness were sufficient, make out the plaintiff’s case. That testimony would show that Kittering knew of Stewards indebtedness to the plaintiffs, and it would be a reasonable inference from it, that he paid the purchase-money to Stewart with a knowledge of his intention to abscond, leaving his debts unpaid, and that he aided him in his flight. The doubt implied in saying h,e had made a good trade, if he could hold the land, showed that he apprehended an attack upon his title. The answer being under oath, we are to consider whether the testimony of Williams is sufficiently corroborated to overcome it. "We have seen that the statements of the answer relative to the consideration, were incorrect. The plaintiff’s position is, that the Anderson debt was 622 dollars and 50 cents; that provision was made to pay 800 dollars of it; that Kittering was to get from Brenner 311 dollars and 25 cents, and thus get rid of the lion by the payment of 11 dollars and 25 cents; but the evidence does not sustain this position. Williams testifies that this sum of 300 dollars was in his hands, and was so understood to be by the parties, at the making of the deed; that he was to pay it, and did pay it, on the Anderson debt; and the execution shows a credit, July 12th, 1839, “by the hand of -, 300 dollars.’.’ Ve have no doubt this was the money paid by Williams. Lucas, the clerk, testifies that when John Kittering and Williams applied to him for information as to the liens, he furnished a memorandum of all he knew of. "We make the amount of the Anderson judgment, at that time, about 900 dollars. Deduct from this the amount in the hands of Williams, and 600 dollars would remain; to which add the surplus revenue mortgage, which was something over 100 dollars, and these taken from 1,500 dollars, the price of the land, would leave about the amount paid to Stewart, according to the testimony of Williams and the declaration of Kittering, proved by Brenner. — 52 — Reconciling this evidence as well as we can, we arrive at the conclusion that Kittering retained some 700 or 800 dollars to discharge the liens and paid the residue to Stewart. This, it is true, does not agree with the statement in the answer; but considering that Kittering was an old man, laboring under some of the infirmities incident to age, — that his answer was made more than seven years after the transaction, — and, especially, that he does not set up the mortgage as one of the liens, of which he was certainly informed at the time, and which he undoubtedly would have done had he remembered it, — it is the most reasonable conclusion, we think, that he was mistaken in the history of the transaction given in the original answer. Independent of the circumstances already considered, the corroborating facts necessary to overturn the answer are few and feeble. The knowledge of Stewart’s indebtedness, a rumor of which the answer admits, with the qualification that he supposed it would have been paid by High, is proved by Williams only, while it is shown that as late as 1840, High sold a farm worth 2,800 dollars. Admitting that Stewart made the declaration to Kittering, that his creditors would take his farm if he did not sell it, of which Williams’s testimony is the only evidence, it may most reasonably be referred to the judgments of record, for the payment of which he was providing by the sale. Nor is there any corroborating evidence in relation to Kittering’s knowledge of the intion of Stewart to abscond, previous to the execution of the deed and payment of the money, nor of his aiding him in his flight. The whole matter rests upon the unsupported testimony of Williams, who, if any fraud was committed, proves himself to have been an active participant in it. Such testimony ought to be strongly corroborated to authorize a decree upon it against the defendant’s answer. There is no preponderance of evidence that the land was not paid for at its full value. It is true, that the payment of a full price will not purify a fraudulent transaction; but yet such payment will be — 53 — entitled to great weight, where the proof of fraud is not clear. The statute under which the ease was tried is, that the plaintiff shall not have a decree against the defendant’s answer, unless he shall sustain the allegations of his bill by two witnesses, or by one witness and corroborating circumstances. E. S. 1843, p. 839, s. 44. In this case the corroborating circumstances to prove the fraud are wanting, and the decree óf the Circuit Court must be reversed. J. JR. JMJ. Bryant and JR. A. Chandler, for the appellant (1). JR. C. Gregory, for the appellees (2). Per Curiam. The decree of the Circuit Court is reversed at the costs of the defendants in error, and this cause is remanded to said Court, with instructions to dismiss the bill.