Gutzwiller v. Lackman

Scott, Judge, delivered the opinion of the court. We do not see on what principle the plaintiff was permitted to introduce evidence of his good character. The rule is stated in the books, that, as evidence is to be confined to the points in issue, the character of either party can not be inquired into in a civil suit, unless it is put in issue by the nature of the proceeding itself. (1 Phil. 176; 2 Greenl. on Evidence, § 54, 55; 1 Cow. & Hill’s notes, 456.) There may be exceptions to this rule, but the cases do not show that evidence of charac-iter is admissible in controversies like the present. The second instruction asked by the defendants should have been given. The facts and circumstances detailed in evidence furnished sufficient ground on which to base such an instruction. If the purchase made by the plaintiff at the trustee’s sale was a pretended one, or was made with means furnished by Schultze, the plaintiff was not entitled to recover. There was no instruction given which set this point in a plain way to the jury. If any instruction covered this matter at all, it was only by indirection. From the view we take of the case, we do not see the importance of the principle sought to be applied, that a creditor taking a dividend under an assignment which is voidable as tending to delay creditors, can not afterwards call in question the [173] validity of tbe trust or assignment. (Burrell on Assignments, 527, 543.) Tbe deed of trust, in our opinion, is not void as a matter of law on its face. Its invalidity is to be shown by extrinsic evidence. The point of tbe defendants’ defence is, that tbe plaintiff was a mere instrument, assisting Schultze in defrauding bis creditors, and purchased tbe lot in controversy with means furnished by him. In this view Gutzwiller could have no interest in maintaining tbe validity of tbe original deed of trust. Such being tbe fact, tbe invalidity of that instrument would not place him in a worse condition. If this view of tbe case is not supported by tbe evidence, it is hardly worth while to institute an inquiry whether tbe trust deed was void under the statute of fraudulent conveyances. If tbe deed of trust was valid, yet if tbe lot was purchased with means furnished by Schultze, the plaintiff can not recover; and if the evidence does not show this, there is little use in attempting to overthrow the original deed, as the same evidence must be relied on for that purpose that is employed to show that in making the purchase there was a secret trust between Schultze and Gutzwiller. No deed under the statute of fraudulent conveyances is an absolute nullity. All such instruments are valid between the parties thereto. They can only be avoided by creditors and subsequent purchasers. If one becomes a purchaser under such a conveyance for a valuable consideration, in good faith, his title will be valid. If, on the other hand, he purchases in bad faith, he will go unprotected, and will .lose his money. Now if/ a deed is made, which a creditor may avoid if he sees fit, yef? if he knowingly acquiesces in a sale by a trustee under such a/ a deed, and accepts a dividend of his debt arising from the pro-’/ ceeds of the sale, does he not thereby affirm the deed ? Ag-¡ cepting a portion of his débt with a full knowledge, would it bej just, with that money in his pocket, to turn around and avoid i the deed under which he obtained it? Should he not at least refund the money he has received before he takes such a step. Notwithstanding the case of Crutchfield’s heirs v. Hudson, [174] (21 Ala. 403,) we are not prepared to depart from the rule laid down in Adlum v. Yard, (1 Rawle, 163,) that though an assignment be in its nature calculated to delay creditors, and therefore voidable, yet, if a creditor take a dividend under it, he can not afterwards question its validity. The other judges concurring, the judgment will be reversed, and the cause remanded.