Hall v. Moriarty

Champlin, J. This is an action of replevin, brought by the plaintiff on the tenth day of January, 1884, to recover certain household furniture, a family carriage, and other property claimed to belong to plaintiff. The plea was the general issue, without notice of special matter. The plaintiff and her husband, Stephen C. Hall, were, at the time of bringing suit, and had been for years prior thereto, residents of the Second ward of the city of Muskegon, Michigan. On said date, the city treasurer, the defendant in this suit, went to the house of the plaintiff and levied on the property named in the writ herein, to satisfy a tax assessed against Stephen 0. Hall, her husband. The assessment for which the tax was attempted to be levied, was upon certain vessel property supposed to be owned by Mr. Hall-at the time the assessment was made. The assessment was as follows: [347] Description. Valuation. Total Tax. •S. C. Hall, Three-fourths of Steam-barge S. 0. Hall $15,000 $490 50 Personal. Three fourths schooner “Telegraph,” assessed by supervisor, .... 3,000 98 10 Grand total tax, $588 60 The plaintiff claimed that she was the owner of the household furniture and other property levied on by the treasurer, and that her property could not be taken to satisfy an assessment against her husband. (It was shown during the trial that the taxes assessed against this household furniture and other property levied upon by the treasurer had been paid before this levy.) The plaintiff claimed that all the property levied upon became hers in July, 1883, and remained hers up to the time of the levy, and was hers at the time of the trial. The defendant claimed on the trial that the property in question was the property of Stephen C. Hall, and that, therefore, it was subject to be levied upon to satisfy taxes levied and assessed against him, and he sought to establish his claim by evidence tending to show that„ the transfer and conveyance of the property made on the 9th day of July, 1883, was made by Hall to his wife with intent to defeat, delay and defraud his then and future creditors. His theory of the case, and his testimony in support thereof, were submitted to,the jury, and they found a verdict against such theory, and the judgment must be affirmed, unless there is some error apparent in the record upon the admission of testimony or in the charge of the court. The following are the errors assigned: First. In the,overruling by the court of the defendant’s objection to introduce in evidence the bill of sale dated'July 9, 1883, from -Stephen C. Hall to the plaintiff. Second. In that the court overruled the objection, and allowed the witness Stephen C. Hall to answer the following question asked him by the plaintiff’s attorney: “ Question. [348] He speaks of an award that had been rendered in an arbitration in Chicago, and which you say was some forty-six thous- and dollars. I will ask you if you were at all alarmed about that matter?” Third. The court erred in overruling the defendant’s objection to the reception in evidence, as offered by the plaintiff, of the two insurance policies, as testified about by Samuel H. Stevens. Fourth. And that the court erred in overruling the defendant’s motion to strike the evidence with reference to the insurance and insurance policies from the record. Fifth. In that the court erred in charging the jury on his-own motion, immediately after giving the defendant’s request to charge, and in relation to the said request, as follows: “ Technically, that’s true; but in order to have that defeat this transfer it will be necessary for you to find that this, transfer was made for the purpose of defeating this creditor, —that is, to defeat the collection of the tax, — or this party has no right to complain.” The execution of the bill of sale under which the plaintiff claimed title to the property was proved by the witness Hall, who executed it, without objection on the trial. Plaintiff’s counsel then offered it in evidence, and the defendant objected to it as incompetent. The court overruled the objection and defendant excepted. No reason was stated at the trial why it was incompetent, and none is given upon the argument. The second assignment of error is without merit. The defendant had attempted to show that a large award had been made against Hall in Chicago, and that he had immediately thereafter disposed of the greater part of his property, including this in question, and had interrogated TTall quite at length concerning his indebtedness and transfers, and the question was asked the witness on re-examination. The question was proper as bearing upon the intent sought to be implied from the transaction. On the same day the bill of sale was executed, the property transferred thereby was insured by plaintiff in her own name, and she introduced [349] that fact in evidence against the defendant’s objection. Considering the issue made by the defendant’s claim, there was nothing objectionable in showing the circumstances attending the transfer. It was offered, doubtless, as some evidence bearing upon the good faith of the transfer. Evidence showing that after the purchase she used the property as her own, was proper under the issue raised. The only remaining error assigned relates to the charge of the court, which was given in the following language: ■“Defendant asks the court to charge the jury that ‘the transfer of the property levied upon by the defendant, in order to vest the title of the property in the plaintiff, so as to defeat the collection of this tax, must have been made in good faith, and without intent to defraud the creditors of Stephen C. Hall.’ I would have given you that instruction, gentlemen of the jury, and technically that is true; but in order to have that defeat this transfer it will be necessary for you to find that this transfer was made for the purpose of defeating this creditor, — that is, to defeat the collection of the tax, — or this party has no right to complain.” The charge was correct, and was based upon the defendant’s theory, and the only theory upon which, if he had any right at all to attack the transfer, he could do so. As the verdict went for the plaintiff, it is not necessary to •discuss the right of defendant to attack the conveyance upon the ground stated by him. The judgment is affirmed. Sherwood and Campbell, JJ. concurred. Cooley, O. J. did not sit.