Gamble v. Johnson

• Decision Date: 31 October 1845
• Citation: 9 Mo. 605
• Court: Missouri Supreme Court
• Parties: GAMBLE & JOHNSTON v. JOHNSON ET AL.

9 Mo. 605

GAMBLE & JOHNSTON

v.JOHNSON ET AL.

Supreme Court of Missouri.

October Term, 1845.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

SPALDING & TIFFANY, for Appellants.

I. The letter of Madison Y. Johnson, offered in evidence by the complainants below, tending to prove the first issue, to wit: whether the deed of the lot in question, made by J. H. & M. Y. Johnson was made with the intent to defraud their creditors, was improperly excluded by the court. 2 Starkie, 29, that “all a man's acts and declarations shall be admitted in evidence whenever they afford any presumption against him.” 2 Johns. Ch. R. 302; 7 Cowen, 301; 12 Wend. 299, as to other transactions being admissible in such cases. 1. This and other authorities show that it was admissible on general principles. 2. And the fact that it did not appear, or rather was not proved to have been sent to the person to whom it was directed, does not justify its exclusion. 3 Starkie's Ev. 1433. “Writings found in the prisoner's possession, but not published, if plainly by their contents, with a treasonable design, are evidence of such a design, though not published.” 1 Burr. R. 644, Rex v. Hensey, “rough drafts of letters written by prisoner, found in his bureau, admitted as evidence.”

II. The testimony of Chase, that before said house and lot were purchased of Shepard by the Johnsons, James H. Johnson told him that “he was going to have the house bought for his mother with what he owed her,” was improperly admitted by the court below. 1. That fact, that James H. Johnson made that declaration previous to 4th September, 1835, the date of Shepard's bond for the lot, had no tendency to prove him innocent of the fraud, if any, in making the deed on 25th April, 1837, to his mother and sister, especially as the bond, and deed by Shepard, were to J. H. & M. Y. Johnson, in their own names, and apparently for their own benefit. 2. Nor was it admissible as proof of indebtedness to his mother, as it admits no amount, and on it, no amount of debt could be established; nor is there, independently of the answers in chancery, any evidence of a debt.

III. The sixth instruction asked by the complainant below, was improperly refused. 1. That an answer responsive to bill, is evidence for the defendant, and generally, in order to a decree against him, must be disproved by more than one witness; but may be disproved by its own contradictions, or by circumstances alone; but when not directly responsive, the answer is not evidence. Greenleaf's Ev. 295-6-7, §§ 258, 259, 260. That two witnesses and circumstances, or mere circumstances alone are sufficient to convict a culprit of perjury, or to disprove an answer in chancery. 2 Johns. Ch. R. 92. “Though one witness against the direct and positive averment of the answer, be not sufficient ground for a decree, yet if that witness be corroborated by circumstances, it will be sufficient, and the answer may in itself, contain the circumstances giving greater credit to the witness.” 9 Cranch R. 153, at page 160. That “or one witness with probable circumstances will be required to outweigh an answer asserting a fact responsive to a bill, is admitted: but certainly there may be evidence arising from circumstances stronger than the testimony of any single witness. The weight also of an answer must depend in some degree, on the fact stated. Where the defendant cannot know the fact, his answer, though responsive to the bill, is not entitled to the same weight.” 8 Mo. R. 19, Roundtree v. Gordon. An answer in chancery, false in one thing, is not entitled to credit in others. 9 Vesey, 275, at pages 282-3, stating general rule as to weight of the answer as testimony, &c., decided against defendant; his answer outweighed by witness and circumstances. 11 Wend. R. 343. Decision of Vice-Chancellor affirmed by Chancellor in Court of Errors; though reversed, yet sustained by Chief-Justice, the only Judge present, and a large minority, that the answer destroyed its own credibility by circumstances, &c. 1 Dana's R. 474, where the answer is responsive, but not on the personal knowledge of the defendant, the rule of two witnesses to disprove, does not apply. 9 Cranch, 153.

IV. The seventh instruction of the complainant below, should have been given. 1. Like the sixth, it pointed out a circumstance, which if it existed (and whether it existed or not, was left to the jury), certainly ought to lessen the weight of the answer in testimony. 2. It calls upon the court substantially to say, that if the answer were found by the jury to be untrue in the points mentioned, they were authorized to give less credit to the answer, than by law they were otherwise bound to do.

V. The first instruction given for the defendant was wrong. 1. It assumes that in the matters mentioned therein, the answer was responsive to the bill, which was not the fact. 1 Johns. R. 580, at page 589, Pendleton, counsel, alleges that the answer was only responsive to the bill, and shows how: and at page 590, Judge Spencer, decides that the bill alleging that the consideration was a full and valuable one, the answer should have been in the affirmative, or negatively merely, and was a departure in saying the note was usurious; and of course the defendant was bound to prove the fact of usury, and his answer is no evidence of it. 1 Munford's R. 373. Roane says that to permit an executor when called on to account, and say what were the particulars and amount of the estate to swear it away, would be monstrous, &c. 1 Dessaussure, 589. Executor's swearing to payment of legacy, no proof thereof, especially as he is swearing to the act of another. 5. Har. & Johns. 372; 1 Wash. R. 224. 2. That instruction gives a summary of the answer of Hannah Johnson, and tells the jury to believe it unless found false by two witnesses. Under that instruction, the jury would naturally think they must believe all she says in her answer, of the subjects mentioned in the instruction. 3. It puts the matter to the jury improperly. That they could not find for complainant without its being proved that Hannah Johnson had “sworn falsely,” for the jury might think she had sworn mistakenly, not “falsely;” and the phraseology of the instruction requires proof by two witnesses that she was perjured. This was calculated to give a wrong impression, and to mislead.

VI. The second instruction is liable substantially to the same objections as the first.

VII. The third instruction of defendant is wrong. 1. It applies the same rule to the whole of these answers, not merely to the points enumerated in the first instruction, but says in substance, that their answers to the charge of the bill, are to be held true unless disproved by two witnesses, &c. 6 Mo. R. 267, 279. 2. It leaves it to the jury to find out what portion of their answers do apply to charges of the bill; thus leaving the matter of law to the jury. 6 Mo. R. 267, 279. 3. This instruction is calculated to mislead the jury. They naturally infer from it that the same weight is to be given to each answer, to wit that of two witnesses, so that there would be what is equivalent to eight witnesses swearing to the same story, set up in the answer, which must be disproved by twice as many. 4. It is wrong in requiring the jury to give the same credit to the answer of each, whether they knew the facts personally or not, as it is evident that they did not of their own knowledge, know all that is stated in their answers.

VIII. The fifth and sixth instructions of the defendants are wrong, in declaring that the words and acts of James H. Johnson, and Madison Y. Johnson, or either of them, could not prejudice the rights of Hannah or Isabella Johnson, unless they, Hannah and Isabella, at the time, were knowing to, or assenting to the same, or have since assented to it, and in excluding Polk's testimony. 1. Because Hannah and Isabella claimed under J. H. and M. Y. Johnson, through their deed. 2. On the first issue, the only inquiry was whether that deed was made to defraud the creditors, and the acts and sayings of the grantors, were the only instruments of evidence to show their fraud in making it. 3. Because if the deed were made without a good and valuable consideration, it would have been void, if intended by the grantors to defraud creditors, whether the grantees were privy to the fraud or not; and it belongs to the jury to determine whether there was a valuable consideration in making that deed. 4. The instruction therefore tells the jury that there was a valuable consideration for the deed, and prohibits the jury from passing on that fact. 5. Because the instruction requires both Hannah and Isabella, to assent to words or acts of the grantors in the deed, in order to be prejudiced; whereas Isabella paid no consideration, was a volunteer, and her assent would have nothing to do with it. Besides she was a child, and could not assent. 6 The instruction is wrong in this also, that it requires the “assent” of Hannah and Isabella to the words and acts of J. H. & M. Y. Johnson, in order that these words and acts should prejudice them; whereas the fraud of the Johnsons in making the deed, would affect the rights of Hannah and Isabella, if Hannah had notice of the fraud at the time of taking the deed. Assent was not necessary to the acts or words manifesting the fraud, or even knowledge of such acts or words, if Hannah were chargeable with a knowledge of the fraud. 1 Story's Eq. 363, § 369; 1 Story's Eq. 341, § 349, as to general doctrine; 1 Story's Eq. 345, § 353, &c. and pp. 355-9; same, 354, § 362; 3 Bac. Abr. 311-12; 8 Wheat. 228; Roberts on Fraud. Con. 13, 14, 15, 16, 17, 18; 4 Cruise, 519, 531, § 55; 3 Mo. R. 302; 4 Johns. Ch. R. 450. These references show that voluntary conveyances by a person indebted, are fraudulent and void, as to creditors; and that conveyances for valuable consideration, when made to defraud creditors, and the grantee is cognizant of that fact, are void, not being bona fide,...