Cooke v. Cooke

• Decision Date: 16 February 1876
• Citation: 43 Md. 522
• Parties: THEODORE COOKE, garnishee of ISRAEL COOKE v. HARRIET Cooke.
• Court: Maryland Court of Appeals

43 Md. 522

THEODORE COOKE, garnishee of ISRAEL COOKE v. HARRIET Cooke.

Court of Appeals of Maryland

February 16, 1876

APPEAL from the Superior Court of Baltimore City.

The appellee having recovered a judgment against Israel Cooke, in an action of slander, caused an attachment to be issued and laid in the hands of the appellant. Verdict was rendered for the plaintiff, and a judgment of condemnation was entered against the garnishee for $1000, with interest, &c. The garnishee prosecuted this appeal. The case is further stated in the opinion of the Court.

[It has not been deemed necessary to state the nature of the exceptions taken to the evidence offered, or to set out the prayers at length, as they are not specifically adverted to in the opinion, and to do so would make the case very lengthy. The references in the appellant's argument to particular exceptions and prayers, will sufficiently explain themselves.--REPORTER.]

The cause was argued before STEWART, BOWIE, MILLER, ALVEY and ROBINSON, J.

N.M. Pusey, for the appellant.

An attachment upon judgment cannot be laid in the hands of a garnishee, in order to charge him in respect of chattels conveyed to him by bill of sale, when the defendant to the judgment, who is also the grantor in the bill of sale, is at the date of the attachment, in the actual possession of the chattels. Attachments upon judgment were not intended as an additional remedy against the defendant to the judgment, but merely as a mode by which the plaintiff could proceed against property or credits of the defendant in the plaintiff's own hands, or in the hands of some person other than the plaintiff or the defendant. Art. 10 sec. 30, of the Code; Davidson's Lessee vs. Beatty, 3 H. & McH., 617, 618.

A party cannot at law, attack the bona fides of a bill of sale of chattels, unless he has obtained a lien upon them. Wanamaker vs. Bowes, 36 Md., 57.

At the trial of this cause, the appellee was permitted, for the purpose of impeaching the bona fides of the bill of sale of 17th April, 1872, to introduce in evidence declarations of Israel Cooke, made in the years 1865, 1866 and 1869. The action of the Court in admitting these declarations in evidence, is the basis of the appellant's second and third exceptions and ninth prayer. The Court erred in admitting this evidence and in refusing this prayer.

1st. Because the suit in which the judgment was obtained upon which this attachment was issued, not having been instituted until long after the time the declarations were alleged to have been made, they could have had no reference to that suit; being so long anterior to the date of the bill of sale, they do not form a part of the res gestæ of that transaction, and cannot throw any light upon the intentions of the parties thereto.

2d. These declarations, not having been brought home to the knowledge of the grantee, (the appellant,) should not be permitted to affect him or his rights. Only those declarations of the grantor are admissible which refer to the transaction sought to be impeached, which constitutes a part of the res gestæ, and which are brought home to the knowledge of the grantee. A party attacking the bona fides of a deed or bill of sale, must not only show fraud, or an intention to defraud, on the part of the grantor, but also, a knowledge thereof and participation therein, by the grantee. 1 Greenleaf on Evid., sec. 108; Rea vs. Missouri, 17 Wallace, 544; Waters' Lessee vs. Riggin, 19 Md., 553, 554.

The appellant's third prayer should have been granted.

1st. Because at common law, the bill of sale was not avoidable by the appellee. Harriet Cooke did not become a creditor of Israel Cooke, until the 26th of April, 1873, the date of her judgment. Fraudulent gifts and conveyances were not, at common law, avoidable by persons who became creditors subsequent to the making of them. Bouvier's Law Dict., Title " Creditor;" 1 Maddock's Chancery, 221; Bacon's Abridgment, Title " Fraud," subtitle, (C) Fraudulent conveyances to defeat creditors; Bohn vs. Headley, 7 H. & J., 259, 271.

2nd. The bill of sale cannot be impeached by virtue of the provisions of statute 13th Eliz. ch. 5, because Harriet Cooke did not, at that time, belong to that class of persons whom the statute was designed to protect. The statute relates to creditors only. Cadogan vs. Kennet, Cow., 434. It does not even appear, that at the date of the bill of sale, the alleged slanderous words, by reason of which Harriet Cooke obtained her judgment, had been uttered. From an inspection of the declarations filed in the "slander case" it would seem, that they had not been spoken at that time, and in the absence of evidence to the contrary, the presumption is, that they had not been.

The appellee's first prayer was clearly wrong in instructing the jury to find for the plaintiff, if they believed the bill of sale was contrived to hinder, delay and defeat her, "in respect of her then pending action at law against Israel Cooke." That pending action was the one which was set forth in the plaintiff's first amended declaration, which, by the concessum of the plaintiff herself, was totally groundless.

The Court erred in refusing the appellant's eighth prayer, because, if the appellee had filed a bill in equity, to have the bill of sale set aside as fraudulent, and had called upon the appellant to answer, under oath, as to his motives and intentions, under the influence of which the bill of sale was made, she would have been bound by his answer, unless she overcame it by the testimony of two witnesses, or by that of one witness with corroborating circumstances. Why should she not be bound, in like manner, if she place him upon the stand as her witness, and examine him as to his motives and intentions in taking the bill of sale? She has done this, and it is submitted, that she has brought herself under the well established rule in equity, as above referred to. Glenn vs. Grover, et al., 3 Md., 214, 215, 229; 3 Greenleaf on Evid., sec., 250.

A. W. Machen, for the appellee.

The Statute of 13th Elizabeth, ch. 5, extends to future as well as existing debts, and a deed having for its object to defraud future creditors is void under that Statute. Barling vs. Bishopp, 29 Beav., 417; Jackson vs. Myers, 18 Johns., 425, where a conveyance made pending an action of slander, was held void as against one claiming under judgment. Wilcox vs. Fitch, 20 Johns., 472, the case of an action of ejectment and succeeding action for mesne profits, and a conveyance made before the judgment in the ejectment.

In a case of actual fraud, there is no distinction between prior and subsequent creditors, if the fraud had reference to such subsequent creditors. Moore vs. Blondheim, 19 Md., 172; Williams vs. Banks, 11 Md., 198, 243; Parish vs. Murphree, 13 How., 99; Feigley vs. Feigley, 7 Md., 562.

A purchase for a full price will not protect the vendee, if the object was to defeat a creditor's execution. The sale must be bona fide, as well as for valuable consideration. Beals vs. Guernsey, 8 Johns., 446; Glenn vs. Grover, 3 Md. Ch. Dec., 29; Worthington vs. Bullitt, 6 Md., 201.

For a statement of the various circumstances tending to show fraud in cases of this nature, see Foley vs. Bitter, 34 Md., 646; Shaferman vs. O'Brien, 28 Md., 675; Feigley vs. Feigley, 7 Md., 562; McDowell vs. Goldsmith, 6 Md., 344; Walter vs. Riehl, 38 Md., 211; Curtis vs. Moore, 20 Md., 93; Garrett vs. Hughlett, 1 H. & J., 3; Alex. Brit. Stat., 383; Bump on Fraud. Con., 321, 324; Drury vs. Cross, 7 Wallace, 302, 303; State, use, &c. vs. Benoist, 37 Missouri, 515.

The bill of sale was properly admitted in evidence, and it was perfectly competent to the plaintiff to impeach it as fraudulent, under an attachment on judgment--which is a writ of execution. Wanamaker vs. Bowes, 36 Md., 42, the case cited and relied on by the appellant's counsel, so far from showing the contrary, by necessary implication sustains this proposition. That was an attachment on original process, and void for want of a sufficient bond. The Court adverting to the defect, and stating that "the attachment was illegal and void," say, "the defendant being thus without the protection of valid legal process, &c.," 36 Md., 56. And it was admitted in argument, that if the attachment there had been valid, it would have been competent for the plaintiff to show that the deed was fraudulent. Ib. 52.

By a valid attachment laid in the hands of the grantee in the deed, the plaintiff does acquire a lien upon the property. Foley vs. Bitter, 34 Md., 646, 650; Curtis vs. Moore, 20 Md., 93.

Under the circumstances of this case, the declarations of Israel Cooke, proved by Morford, Mrs. Willis and others, were competent evidence to go to the jury. It is impossible to maintain that in cases of fraud participated in by several every piece of evidence shall point directly to all. Here it was necessary, amongst other things, to prove the animus of Israel Cooke; and that could in no manner be so satisfactorily shown as by his own declarations, made with reference to the plaintiff. It is objected that some of these declarations are separated by a considerable interval of time from the execution of the bill of sale. But they all precede its execution, and they all relate to the subject-matter of it. If the issue were simply between Harriet and Israel Cooke, the pertinency of the evidence, as bearing upon the question of Israel Cooke's motives in making the bill of sale, could not be questioned. The fact that another party has united in carrying out the fraudulent design which those declarations indicated, does not render them less pertinent; although such fact of fraudulent participation, of course, needs to be proved by other evidence. ...