Ferbrache v. Martin

• Decision Date: 01 February 1893
• Parties: FERBRACHE v. MARTIN
• Court: Idaho Supreme Court

32 P. 252

3 Idaho 573

FERBRACHE v. MARTIN

Supreme Court of Idaho

February 1, 1893

BILL OF SALE-ADMISSIBILITY OF AS EVIDENCE.-A bill of sale made and executed on the twenty-third day of June, 1890, cannot be introduced in evidence unless it complies with the act of February 7, 1889 (15th Sess. Laws, p. 49), in that it must be acknowledged before a notary public, or other officer authorized to take acknowledgments, and must be recorded in the office of the county recorder in the same manner as a deed.

TRANSFER OF PERSONAL PROPERTY-FRAUD.-Where fraud is alleged in a transfer of personal property, and that it was transferred for the purpose of defrauding, delaying or hindering creditors, and facts appear in the evidence which have a strong tendency to sustain such allegation, much latitude is allowed in the examination of the parties to the transfer and others in any wise connected with the affair.

SAME.-The acts or declarations of a party to a fraudulent transfer of property are admissible in evidence, though he is not a party to the suit, and though not made in the presence of the party claiming to be the purchaser of the property.

(Syllabus by the court.)

APPEAL from District Court of Kootenai County.

Reversed, and a new trial ordered. Costs awarded to appellant.

Charles L. Heitman and Albert Hagan, for Appellant.

Section 19 of the Laws of Idaho, approved February 7, 1889, is as follows: "It shall be unlawful for any person in this territory to sell any head of livestock without giving a written bill of sale therefor. And it shall be unlawful for any person in this territory to purchase any head of livestock without receiving a bill of sale therefor. Such bill of sale shall contain a full description of all marks brands, or either, on such livestock, and must be witnessed by two reputable citizens of the territory, acknowledged before a notary public or an officer authorized to use a seal, and must be recorded in the office of the county recorder in the same manner that deeds are recorded." (Laws 1889, p. 49.) Declarations and acts of a party to the fraud are admissible, though not a party to the action. (Mamlock v. White, 20 Cal. 592; La Fitte v Rups, 13 Colo. 207, 22 P. 309; 1 Greenleaf on Evidence, sec. 190.) The acts of all debtors charged with the execution of a conveyance for the purpose of defrauding creditors made in the absence of the grantee are admissible to prove such fraudulent purpose, and the grantee's knowledge of such fraudulent purpose may be shown by any circumstance tending to show participation in the designs of the debtor. (8 Am. & Eng. Ency. of Law, 778; notes to Holms v. Braidwood, 82 Mo. 610.) Fraud may be inferred from circumstances without express proof. (Penkitt v. Polach, 17 Cal. 327; Butler v. Collins, 12 Cal. 458.) It is not necessary to show that the fraudulent intent constituted the sole purpose, but that it constituted a part of the purpose and design. (Waite on Fraudulent Conveyances, secs. 196, 197.) Such facts as will awaken suspicion and lead a man of ordinary prudence to make inquiries make the vendee chargeable with the knowledge of the fraudulent intent, and with participation in the fraud. (Gollober v. Martin, 33 Kan. 252, 6 P. 267; McDonald v. Gaunt, 30 Kan. 693, 2 P. 871; Wells v. McMahon, 3 Wash. Ter. 532, 18 P. 73.) Where the evidence of the fraud is circumstantial and presumptive, it is error to refuse a construction as to the necessity in most cases of relying upon such evidence to prove fraud. (Sukeforth v. Lord, supra; Gollober v. Martin, 33 Kan. 252, 6 P. 267; McDonald v. Gaunt, 30 Kan. 693, 2 P. 271; Wells v. McMahon, 3 Wash. Ter. 532, 18 P. 73.)

R. E. McFarland, for Respondent.

In arguing this case we shall notice only one point raised by counsel for defendant, viz., the sufficiency of the evidence; for notwithstanding the fact that counsel's statement contains fifteen or more assignments of error, we are constrained to believe that they rely almost solely upon the ground that the evidence was insufficient to sustain the verdict. The evidence is so plain and positive that we deem it absolutely unnecessary to cite any authorities.

MORGAN, J. Huston, C. J., and Sullivan, J., concur.

OPINION

MORGAN, J.

This is an action brought by the plaintiffs to recover from the defendant the sum of five hundred dollars ($ 500) damages, alleged to have been suffered by plaintiffs by reason of the conversion, by the defendant, of two mules described in the complaint, and claimed by the plaintiff, Hannah Ferbrache, as her property. The complaint alleges that the said two mules were worth two hundred and fifty dollars ($ 250) each, and that the plaintiff, by reason of such conversion, was damaged in the sum of five hundred dollars ($ 500). The defendant's answer sets up that at the time of the said alleged conversion, he was the sheriff of Kootenai county, and that on the third day of July, 1890, an action was commenced by John H. Stone against the firm of Ferbrache Brothers, in the district court of the first judicial district of the state of Idaho, in and for the county of Kootenai, to recover the sum of nine hundred and ninety dollars and nineteen cents ($ 990.19), alleged to be due to said John H. Stone from said Ferbrache Brothers, and that on said day a summons and a writ of attachment in said action were issued from said district court, and duly served upon Lincoln Ferbrache, a member of the firm of Ferbrache Brothers, by the defendant, as sheriff of Kootenai county, and that on the fourth day of July, 1890, the defendant, as aforesaid, levied upon the said mules in controversy in the action at bar, and attached them in behalf of the said John H. Stone. That on the fourth day of August, 1890, judgment by default was entered in said action against said Ferbrache Brothers, in favor of John H. Stone, for the sum of nine hundred and ninety dollars and nineteen cents ($ 990.19), and that on the eighth day of August, 1890, an execution was issued out of said district court, in said action, and placed in the hands of the defendant as sheriff as aforesaid, for service, and that the defendant, by virtue of said writ of execution, on the eighth day of August, 1890, levied upon all the right, title and interest of the said Ferbrache Brothers in the said mules; and the said sheriff, after duly advertising, on the eighteenth day of August, 1890, sold the said mules at public auction to satisfy the said execution, at which sale said John H. Stone became the purchaser of the said mules for the sum of three hundred dollars.

Defendant denies ownership or possession in plaintiffs, and alleges that the plaintiff, Hannah C. Ferbrache, claimed title to said mules by virtue of a pretended bill of sale executed by Ferbrache Brothers to the plaintiff, and given about the time of the institution of the action against them by said Stone; and alleges, further, that the pretended bill of sale was made without any consideration, that Ferbrache Brothers were insolvent at the time of the execution of the said pretended bill of sale; that the bill of sale was made with the intention to hinder, delay and defraud the creditors of said Ferbrache Brothers, and especially said Stone.

The case was tried by a jury, which resulted in a verdict for the plaintiff for three hundred dollars. A motion for a new trial was made, upon a statement of the case, which was denied, and the defendant appeals both from the judgment, and the order overruling the motion for a new trial.

The plaintiffs introduced a bill of sale, executed on the 23d of June, 1890. The bill of sale was admitted in evidence over the objection of the defendant, which is assigned for error. Section 19 of the Laws of Idaho, 15th Session, page 49, provides: "That it shall be unlawful for any person in this territory to sell any head of livestock without giving a written bill of sale therefor, and it shall be unlawful for any person in this territory to purchase any head of livestock without receiving a bill of sale therefor; such bill of sale shall contain a full description of the marks and brands or either on said livestock, and must be witnessed by two reputable citizens of the territory, and acknowledged before a notary public, or other officer authorized to use a seal, and must be recorded in the office of the county recorder in the same manner that deeds are recorded." This act was approved February 7, 1889, and was repealed March 3, 1891, and was therefore in force at the time of the execution of this bill of sale.

The bill of sale does not comply with the requirements of this act in any respect, except that it was in the ordinary form, and was witnessed by two citizens. It was not, however, acknowledged before a notary public or any other officer authorized to take acknowledgments, nor was it recorded in the office of the county recorder in the manner required by this act. It was therefore not admissible as evidence tending to prove the sale was transfer of this property, and to admit it for such purpose was error.

The next specification of error which it is necessary to notice was the refusal of the court to permit a series of questions to be propounded to R. L. Ferbrache, a member of the firm of Ferbrache Brothers, and one of the parties to the bill of sale which was alleged by the defendant to be fraudulent, and made for the purpose of defrauding the creditors of said firm, as follows, to wit "What other teams did you own besides these two? Did you not go down and make a bargain with Mr. Jacobs about these two teams of mules?" Meaning the team in controversy and one...