Goodall v. Stewart

• Decision Date: 05 December 1887
• Parties: GOODALL, FITE & JAMES v. W. H. STEWART
• Court: Mississippi Supreme Court

3 So. 257

65 Miss. 157

GOODALL, FITE & JAMES v. W. H. STEWART

Supreme Court of Mississippi

December 5, 1887

APPEAL from the Circuit Court of Noxubee County, HON. W. M. ROGERS Judge.

The case is stated in the opinion of the court.

Judgment affirmed.

J. E Madison, for the appellants.

The 2d 3d, 4th and 5th assignments of error are predicated upon refusal of court to admit acts and declarations of Jeffries, the assignor, against Stewart, his assignee.

In this cause Stewart, the claimant, was a nominal party, was claiming only as assignee of Jeffries under the deed of assignment, and it was Jeffrie's fraud that was being tried.

Any acts and declarations of Jeffries were admissible against Stewart. Craft v. Bloom, 59 Miss. 69; Wait's Fraud. Cond., etc., § 319, and a long list of authorities cited.

While the evidence must ascertain and establish the assignor's intent at the time of the execution of the instrument, yet all circumstances either prior or subsequent to the assignment should be considered by the court and jury in arriving at the intent of the grantor. See authorities cited Wait's Fraud. Cond., § 320.

On an inquiry as to the state of mind, sentiments or disposition of a person at a particular period, his declarations and conversations are admissible. See several authorities cited by Wait Fraud. Con., § 206.

Bogle & Bogle, for the appellee.

We think the testimony offered was properly excluded, both because it was hearsay, and because it was not relevant to the issue being tried.

First. It was hearsay. Jeffries was not a party to the suit, nor was any representative of his a party. There are numerous cases holding that declarations of persons in possession of land, explanatory of their possession, or in disparagement of their title, are admissible against a subsequent vendee; and some authorities extend this doctrine to persons in possession of personal property. In Dodge v. Freedman's Sav. and Trust Co., 93 U.S. 379, it is said, however, that this doctrine does not extend to personal property. However that may be, the testimony offered in this case does not come up to that rule; the declarations of Jeffries that were offered did not tend to disparage his title to the property, nor were they explanatory of his possession. 1. Greenleaf on Ev., Sec. 190 and 109.

They were not a part of the res gestae, for they were made sometime before the execution of the assignment, not during the progress of any negotiations looking to the execution of the assignment, nor in contemplation of it. The question is, are the statements of the assignor made before the assignment, and not part of the res gestae, in reference to the character of his business, admissible against the assignee? The following authorities hold they are not: Bullis v. Montgomery, 50 N.Y. 353; Chadwick v. Fonner, 69 N.Y. 404; Paige v. Cagwin, 7 Hill, 361; Dodge v. Freedman's S. & T. Co., supra; Burrill on Ass., Section 404.

In Bullis v. Montgomery, supra, the facts bore a strong likeness to this case. Walters bought goods from Montgomery, and about that time made the declaration that he intended to cheat Montgomery out of them. Afterwards Walters made an assignment for the benefit of his creditors. Montgomery sought to defeat the assignment, and offered against the assignee the declaration of Walters above quoted. The court says such testimony was hearsay, and came within none of the exceptions.

Second. The testimony was irrelevant. Its tendency was to prove that the debt due plaintiff was fraudulently contracted; but it did not tend to prove the assignment was invalid. It did not tend to prove that Jeffries executed the assignment to defraud his creditors, nor that there was any reservation of a benefit to Jeffries, nor a secret trust in his favor. These are the things that avoid an assignment that is valid on its face. Wilson v. Forsyth, 24 Barb. 105; Estes v. Gunter, 122 U.S. 450; Thompson v. Drake, 32 Ala. 100.

OPINION

COOPER, C. J.

One Jeffries, being largely indebted to a number of his near relatives and intimate friends, embarked in the mercantile business in the month of September. He bought a large stock of goods on credit, making his paper given therefor mature in sixty and ninety days. About one-half of the goods he converted into money and, before the maturity of his commercial debts, he made an assignment to the appellee, Stewart, for the benefit of his creditors. By this assignment he preferred the debts due by him to his family and friends, putting them in class one, a class which was to be paid in full before any payments should be made to those in class two. In the second class were all his mercantile creditors. The value of the property assigned will not be more than sufficient to pay class one.

The appellants, creditors for goods sold to Jeffries, sued out an attachment against him and have obtained judgment in that suit. They caused the writ to be levied upon the assigned property, and the assignee interposed a claim thereto.

On the trial of this issue the plaintiffs offered to prove certain declarations made by Jeffries at the times of various purchases made by him of goods, to the various sellers of the...