Blue v. Penniston

Napton, Judge, delivered the opinion of the court. Upon a more careful examination of the case since the argument, we have not been convinced of the propriety of excluding the testimony offered to show the true date of the plaintiff’s debt. The evidence, it is conceded, was competent, and the only ground of its exclusion was irrelevancy. This is rather unsafe ground when the question at issue is one of fraud — a matter about which there is seldom to be [274] found direct and positive proof. The only question in this case was, whether the deed of Robert Penniston was an after-thought, a contrivance to defraud some creditor or creditors of Kerr. To enable the plaintiff in the attachment to make any headway in establishing this allegation, it would of course be very material for him to show that Kerr was in debt at the time of the execution of the deed. The note upon which suit was brought was dated after the deed, and, without explanation, upon the face of the transaction alone, it would be rather an up-hill labor to convince a jury that a deed made nearly two years before the debt was intended as a fraud upon the creditor. To get a starting point for an attack upon the deed, it was essential for the plaintiff to show that the debt was really due two or three years before the note was given, and this is the evidence which was offered and excluded. In connection with this point, we may also express our doubts of the propriety of the third instruction which the court gave for the interpleader. In this instruction, the court declared the acts of Robert Penniston and John K. Kerr, in selling certain slaves enumerated in the deed some time after it was executed, were no evidence to invalidate the deed. This instruction virtually excluded the testimony on this point from the jury. Undoubtedly the acts of the father and the husband could not and ought not to affect any vested interest of the wife and daughter; but it will be observed that the question really at issue was, whether Mrs. Kerr had any interest; in other words, whether the deed was bona fide and valid, or a mere contrivance to defraud Kerr’s creditors. The acts of Kerr and the father, who was the maker of the deed, are introduced to bear on the question, to explain the character of the original transaction. What weight such evidence would have is another question. It may be admitted that by itself it would be entitled to but little; but in questions of this nature — mostly explained by circumstances in themselves perhaps trivial, remote and dis [275] connected, but when combined and brought together capable of tending to as satisfactory conclusions as the most plain and direct evidence — it will not devolve on the court presiding over the trial to exclude each piece of detached evidence, as it is offered, because of its insufficiency or its apparent irrelevancy. It may be that the evidence is so unsatisfactory to the court that a verdict found on it would be set aside; but even this we do not conceive will warrant the judge in excluding it. If it is competent and has a tendency to explain the issue, it ought to be received; and when the whole case is put to the jury and acted on, it will be proper for the court to say whether a verdict based on the evidence will be permitted to stand. With the concurrence of Judge Scott, the judgment is reversed and case remanded.