Webber v. Jackson

Campbell, J. Complainant filed a judgment creditors’ bill in aid of execution, and to reach equitable assets. On September 26, 1884, he recovered a judgment in a suit upon a former judgment indebtedness against Andrew E. Jackson for between seven and eight thousand dollars. In April, 1884, while this suit was pending, it is claimed by defendant Timothy W. Jackson that he bought in good faith, and for a completed valuable consideration, a considerable amount of real estate in Saginaw county from his brother Andrew, being the land levied on by complainant; the consideration being $6,787.74 of past indebtedness given up. The validity of this alleged arrangement is the only important question before us. If that was valid, there seems to be nothing else to get at as equitable assets or personalty. If it was not valid, its rescission involves the subsequent dealings in regard to rents, and other [177] incidental profits and property, based on the ownership of the land. The defendant Andrew E. Jackson, instead of answering the bill seriously, filed a so-called “answer "which is full of impertinence, in the popular as well as the legal sense of that word, which deserves censure. As no answer under oath was asked, it amounts to nothing, except so far as it professes to show the nature of the transfer to Timothy; and in this it is not clear. Timothy, who is the defendant chiefly interested, ostensibly claimed to be a Iona fide purchaser for valuable consideration. His answer amounts to no more than an assertion of the fact, without explanation. But, instead of averring the fact that there was a conveyance, and that it was for value, he contents himself with saying that the conveyances,— “If any were made by said defendant Andrew E. Jackson to this defendant, were made in good faith, and for a valuable consideration." Such an answer is not only without point, but it asserts no rights whatever in defendant, and is a circumstance of some meaning. Complainant put Andrew on the stand, and in a long examination, in which direct and cross examination alternate frequently, the defense is, rather shadowed out than plainly sworn to, that in April, 1884, Andrew went to the state of New York, at Timothy’s request, and had an- accounting with Timothy, and arrived at a balance due of the sum stated. It is not suggested or shown that Andrew had any counter-claims. The amount of debt is said to have been figured up by adding together several notes and express receipts, Avnich are produced and identified by Andrew, but not by Timothy, who, however, says the amount named in the deed was due for loans. None of those items accrued within [178] the period of limitation, except one. All the items of notes were, with that exception, dated in 1874, 1875, and 1876, and payable at from 10 to 30 days, except one, of December 5, 1874, for $130, at six months. Among these notes was one 30-day note, of $3,477.17. None of them had any place' of payment. In each of . them the word “order” had been changed to “bearer,” which is a very uncommon thing in such business. Most of them had no appearance of handling. All were on the same printed or lithographed form, got up some years before, in the days of revenue stamps; and most of them had the left-hand ornamental portion torn oil, wholly or partially. There is no explanation why they, or some of them, had never been demanded or discussed during their legal life. There was no attempt to show that any of these notes represented any particular money or other transaction. None of them was identified by Timothy; but he did swear that all of the notes and other evidences of debt were surrendered to Andrew in the spring of 1884, when' in New York, and that the settlement was then completed, — which is not true, literally, at least. In this connection it may be noted that while, according to both parties, the settlement was the result of urgency from Timothy, which seems to have been a single instance of solicitude after many years of quiet, and both say it was completed, no writing was made on either side, and no haste was shown in conveying. A paper is produced, purporting to be a letter from Timothy to Andrew, dated May 10, 1884, and within two weeks of the alleged settlement, as follows: “Mr. A. E. Jackson, “Sir: As you have executed the deed of property to me as you said you would when here, now see if you can find any one to lend money and fill out mortgage, and [179] send to me, and I will execute it, and return. I want $1,200 or $1,500 dollars, five or ten years. “Tim W. Jackson.” Timothy does not refer to this in his testimony. Andrew, according to his testimony, never wrote him on business after his return to Michigan. No attempt seems to have been made to borrow money, and nothing more was said by any one concerning this matter. The testimony shows both defendants to be intelligent men, of some business experience. At this time the deed was not made. Andrew, at some time or other, drew it up himself. He did not get his wife to execute it. It was dated April 28, 1881, but was not witnessed or acknowledged until June 23, when it was recorded. It was never sent or delivered to Timothy; and it does not appear whether he heard of it at all before suit. Andrew continued to use the property, and receive its returns, under what he claims to have been an agreement with Timothy to do so on shares. Timothy says nothing of any such agreement, never received a cent of the proceeds, and never asked for it,- and heard nothing from Andrew about that, or any other matter which related to his supposed interests. It is claimed by counsel that because complainant swore Andrew he must be considered as asserting his veracity. No such difficulty exists concerning Timothy, who utterly fails to throw any satisfactory light on what concerns him much more than it concerns Andrew. But it seems a little incongruous to claim that a party who puts a defendant on the stand for the express purpose of showing his fraud, thereby gives him credit for honesty. This same claim was set up in Roberts v. Miles, 12 Mich. 297, where it was held by this Court that, whatever risks may be run in doing so, the testimony is to be judged according to its merits, and creates no estoppel. [180] We have no disposition to go into conjectures concerning the real character or origin of some of the very suspicious documents before us; but a review, of the whole record convinces us that this transaction was not only meant to avoid payment of a claim which had no defense, but that there was no genuine sale at all. All of the circumstances indicate that it was a sham throughout, and that Timothy’s name is used to hold what has never been anything but Andrew’s property. The testimony is evasive, and too vague to explain what needed explanation, and what both parties — Timothy as well as Andrew — must have been able to explain. While fraud is not to be assumed without proof, it is nevertheless oftener shown by circumstances than in any other way. When things appear that are contrary to the ordinary ways of honest business men, and call for explanations which might be, but are not, given, it is no violent inference to conclude that there is something wrong. And where this occurs repeatedly, and is the general characteristic of the conduct and statements of the parties, it is their own fault if they are held to the consequences. We think that the conveyance to Timothy should be declared void as against complainant’s levy and judgment, and that all the proceeds, so far as they can be reached, and all the dealings connected with the land, must be regarded as belonging to Andrew. The complainant is entitled to a receiver, if he chooses to have one, and to have the usual .assignment to him under the practice in judgment creditors’ bills, and to pursue the usual remedies in such cases. He is entitled to a reversal of the decree below, with costs of both courts, and to enter a decree in accordance with these views. The other Justices concurred.