Gregory v. Cheatham

Decision Date31 August 1865
Citation36 Mo. 155
PartiesSPENCE H. GREGORY, Appellant, v. JOHN T. CHEATHAM et al., Respondents.
CourtMissouri Supreme Court

Appeal from Livingston Circuit Court.

The plaintiff asked the court to instruct the jury:

1. If the jury find that Cooper and wife made the deed in controversy to defendant Cheatham with the intent to hinder, delay or defraud the creditors of said Cooper, and that the said Cheatham had knowledge o such fraudulent intent at the time of accepting the said deed. and that said Cheatham intended to aid, they will find the deed fraudulent.

2. If the jury find that Cooper was largely indebted at the time of making the conveyance to defendant Cheatham, and that the consideration actually paid by Cheatham was greatly less than the said property was reasonably worth at the time, it is a circumstance from which they may infer that the said deed was fraudulent, provided they further find that Cheatham knew of Cooper's intent to defraud, hinder or delay his creditors.

3. If the jury find that Cooper made the conveyance to Cheatham with the intent to hinder and delay the creditors of Cooper, they will find for plaintiff if they believe defendant Cheatham accepted said deed with knowledge of Cooper's said fraudulent intent.

The court refused the 3d instruction so asked by plaintiff, to which the plaintiff excepted.

Defendant prayed the court to instruct the jury as follows:

1. That if defendant Cheatham bought the property in good faith and for a valuable consideration, his deed is valid and cannot be set aside at the instance of plaintiff.

2. That the transaction between Cooper and Cheatham is presumed to be honest, and the burden of proving it otherwise is upon the plaintiff.

3. That the deed in question is not fraudulent unless plaintiff proves the same to have been made with the intent, on the part of Cooper, to cheat, hinder or delay his creditors; and not even then, unless he further proves that defendant Cheatham, at the time he took the deed, had knowledge of Cooper's said intention, and accepted the same with the view to aid or assist Cooper in his said fraudulent intent to cheat his creditors.

4. That defendant had a right to secure his own debt, if Cooper was owing him anything, by the purchase of his property; and it made no difference to him what Cooper's intention was, if he bought in good faith and for valuable consideration, and to secure an existing debt, in whole or in part.

The instructions asked by defendant were given by the court, to which the plaintiff excepted.

L. T. Collier, for appellant.

I. The court erred in rejecting the proof offered by plaintiff of other conveyances, executed by Cooper to other parties at and near the time when the deed from Cooper to Cheatham was made. In the investigation of questions of fraud, the range of inquiry is necessarily broad, and can have no very well defined limit. The evidence proposed should have been admitted; and when all in, if found by the court to be irrelevant, might then have been withdrawn from the jury. (Lane v. Kingsberry, 11 Mo. 402; Carson v. Murray, 15 Mo. 378; Blue v. Penniston, 27 Mo. 272.)

II. The court erred in permitting the notes of Gregory v. Cooper and the testimony of Wells in relation thereto, as well as the letter of Holt, to go to the jury for the purpose of impeaching the deposition of Holt. To impeach a witness by proof of contradictory statements made by him out of court, or on other occasions, it is indispensable that the attention of the witness sought to be impeached should first be called to the alleged contradictory matter, that he may have the opportunity of explanation; and this rule extends to subsequent as well as to previous statements of the witness, and applies to all declarations made out of court, whether oral or written. (1 Greenl. Ev., § 462, p. 578; Clapp v. Wilson. 5 Denio, 285; Stephens v. The People, 19 N. Y. 589; Kimball v. Davis. 19 Wend. 437; Stacy v. Graham, 14 N. Y. 498; Unis v. Charlton's Adm'r, 12 Grat. Va. 484; McDaniel v. Bacon, 2 Cal. 326; Drennen v. Linsey, 15 Ark. 359; Conrad v. Griffey, 10 How. U. S. 38, or 21 Curtis, U. S. 23; Bryan v. Walton, 14 Ga. 185; Smith v. The People, 2 Mich. 415.)

III. The court erred in refusing the 3d instruction asked by plaintiff. and in giving the 3rd and 4th asked by defendants. (18 Mo. 178, and anthorities there cited.)

Additional list of authorities--1. As to record of conveyances: Lane v. Kingsberry, 11 Mo. 402; Carson v. Murray, 15 Mo. 378; Blue v. Penniston, 27 Mo. 272. 2. As to the letter; 1 Greenl. Ev., § 462. p. 578: Clapp v. Wilson. 5 Denio, 285; Kimball v. Davis, 19 Wend. 437; Conrad v. Griffey, 21 Curtis, 23. 3. As to instructions: 12 Wend. 298; 13 Wend. 570; 18 Mo. 178.)

Ray & Woolfolk, and Turner, for respondents.

The 3d instruction asked by plaintiff was rightfully refused, because a creditor has a right to purchase the property of his debtor, to secure a pre-existing debt, notwithstanding the debtor may intend by said sale to hinder or defraud some other creditor, and notwithstanding the creditor knows that fact; provided the creditor, in good faith purchases the property, at fair prices, to secure his own pre-existing debt; and that is the ground of the 4th instruction given for defendant. In other words, a debtor has a right to prefer one creditor to another.

The court committed no error in refusing to allow plaintiff to show that said Cooper had made other conveyances of other property, to other parties, at other times; because this deed must stand or fall upon its own merits. If made in good faith and for a valuable consideration, it must stand, however fraudulent other deeds may have been. It would have embarrassed the court, and multiplied the issues to an indefinite extent, if the fairness and validity of all the deeds and transactions to which Cooper may have been a party were to be looked into upon this trial.

For the purpose of testing the credibility of a witness, it is always competent to show by legitimate testimony that he is interested in the event of the suit in which he testifies; it was therefore right and proper to show what relation he bore to this case and what interest he had in it.

In relation to the introduction of the letter of Holt to Wells, it is proper to say that, under the circumstances, it was impossible, and therefore improper, to apply the rule (laid down in some of the authorities and denied in others), that you cannot contradict a witness by proving what he has done or said out of court until you have first asked him, upon cross-examination, whether he has done or said such a thing. In this case it was impossible, for at the date of the deposition he had not written the letter in question; the foundation, then, for contradicting him could not thus be laid in the case, and the law requires no impossibilities.

The witness (Wells) shows that the consideration for the deed did not embrace but a small balance of prior indebtedness from Cooper to Cheatham, but was made up mostly by other items then advanced and assumed or transferred by the witness. These show that if the letter is left out altogether, the verdict is still for the right party. (15 Wend. 420; 3 Caines, 278; 17 Mass. 160; 1 Blackf. 86.)

LOVELACE, Judge, delivered the opinion of the court.

This is an action brought to set aside a deed made by one Charles Cooper to the defendant Cheatham. The court below found a verdict for the defendant, to reverse which the case is brought here by appeal. On the trial the court called in the aid of a jury, and submitted to them the following issues of fact:

1. The plaintiff affirms that the deed from Charles Cooper and wife to John T. Cheatham, mentioned in plaintiff's petition and dated March 29, 1862, for certain real estate described therein, was made, acknowledged and delivered by the said Cooper and wife to the said Cheatham without any sufficient, adequate and valuable consideration therefor, and with the intent to hinder, delay and defraud the creditors of the said Charles Cooper in the...

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16 cases
  • The Salmon Falls Bank v. Leyser
    • United States
    • Missouri Supreme Court
    • May 16, 1893
  • State ex rel. Goldsoll v. Chatham Nat'l Bank
    • United States
    • Missouri Supreme Court
    • October 31, 1883
    ...Freeman v. People, 4 Denio 9. The action of the trial court in admitting in evidence the deposition of Mrs. Goldsoll was error. Gregory v. Cheatham, 36 Mo. 155, and cases cited; State v. Starr, 38 Mo. 278; Spaunhorst v. Link, 46 Mo. 197; Lohart v. Buchanan, 50 Mo. 202; State v. Elkins, 63 M......
  • State v. Young
    • United States
    • Missouri Supreme Court
    • January 27, 1890
    ... ... 393; Wharton's Criminal Evidence [8 ... Ed.] sec. 483 and note; State v. Stein, 79 Mo. 332; ... Steamboat Chas. Morgan, 115 U.S. 69; Gregory v ... Cheatham, 36 Mo. 155; Stephens v. People, 19 ... N.Y. 549; Samuels v. Griffith, 13 Iowa 103; ... State v. Devlin, 7 Mo.App. 36. (4) ... ...
  • Nagel v. St. Louis Transit Company
    • United States
    • Missouri Court of Appeals
    • February 16, 1904
    ...for the introduction of such evidence. This objection the court overruled, defendant excepting. This ruling was erroneous. Gregory v. Cheatham, 36 Mo. 155; Spohn Railroad, 116 Mo. 617; State v. Grant, 79 Mo. 113; McDermott v. Railroad, 87 Mo. 285. (4) The two instructions given by the court......
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