Brander v. Ferriday, Bennett & Co.

Martin, J., delivered the opinion of the court. The plaintiffs seek to set aside a mortgage, on the ground of the insolvency of the mortgagor at the time it was given, and that its object was to give an unjust preference to the mortgagees over other creditors. There was judgment against the plaintiffs, and they appealed. The case is before us on four bills of exception, taken by the counsel of the plaintiffs and appellants, to the rejection of four of their witnesses. 1. Cozzens, the first witness, was offered to prove that at the date of the mortgage, Byrnes, the mortgagor, was generally considered to be insolvent. 2. Wilson was offered to prove the same facts, and objected to on the same grounds. The objection to the testimony of these witnesses was, that evidence of Byrnes being generally considered to be insolvent, at the time of the mortgage, was not legal evidence of the actual insolvency of Byrnes, or of the knowledge, on the part of the defendants, that he was insolvent. the general opivénoyofa mortgagor, in his théS'lknow°iedge gageesreceiving a mortgage in tors, is a fact shown to1 create the presumption of knowledge in the mortgagees, . dénce'oagM not beoanse^aione’ it does notoper- A party cannot offer all his evidence simuinoTTo^b^controlled in the choice of that which he choosa party^to^the suit, who is interested cannot be called as a witness. A witness win to tesUfyathatVhe was ignorant of the law, m reíation to a certain tnmsMtmn, as immaterial and he is bound to know the law. It appears to us the court erred. The objection went only i0 the effect, and not to the admissibility of the testimony. The plaintiffs sought to establish the insolvency of the mortgagor, within the knowledge of the mortgagees. Evidence of the general opinion of the insolvency, in the neighborhood of mortgagees, is a fact which may be shown to create a presumption that the mortgagees were not ignorant of it; a presumption which, coupled with others, might induce the belief of the mortgagees’ knowledge. Presumptive evidence ought not to be rejected, because, alone, it does not operate conviction. The party cannot offer all his proofs simultaneously; and is not to be controlled in the choice of that which he may first offer. The third witness, Collier, the vendee of the mortgaged premises, had been made a defendant. He was offered to , . prove, “ that a few weeks after the execution of the mortgage, one of the mortgagees told witness he was apprehensive Byrnes was insolvent, and offered to contribute with witness, w^° was a^s0 a creditor of Byrnes, to pay the expenses of bringing back certain slaves, not included in the mortgage, which were sent away from Byrnes plantation. ’ Objection was made to the witness and his testimony, on . c . , . . , . . . J TT the score or interest, and his being a party to the suit. He ^at* Prayed in his answer that the mortgage be set aside; the court, therefore, did not err in rejecting him as a witness. . . . 4. Hams, the last witness of the plaintiffs, having been examined without objection, was recalled to prove that he was not acquainted with the law of Louisiana, in relation to ^ ^ contracts of an insolvent, at the time he was negotiating with Byrnes, as set forth in his testimony ; this wás objected to, on the ground that the knowledge of witness, in relation to laws Louisiana, was immaterial, that he was bound to know the law ; the objection was sustained, and we think 1 properly. As the plaintiffs were entitled to the evidence of the two ^lst w>tnesses: which, in our opinion, were improperly rejected, the case must be remanded, to afford them the opportunity 0f availing themselves of this testimony: See the case of Maurin vs. Chambers & Williams, just decided ; ante, 207. [301] It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed ; and that the cause be remanded for further proceedings, and with directions to admit the two first witnesses, as above stated; the defendants and appellees paying the costs of this appeal.