Grimes v. Hill

• Court: Colorado Supreme Court
• Writing for the Court: [15 Colo. 362] ELLIOTT, J., ( after stating the facts as above.)
• Citation: Grimes v. Hill, 15 Colo. 359, 25 P. 698 (Colo. 1891)
• Decision Date: 10 January 1891
• Parties: GRIMES v. HILL.

25 P. 698

15 Colo. 359

GRIMES v. HILL.

Supreme Court of Colorado

January 10, 1891

Error to superior court of Denver.

William E. Grimes, plaintiff below, brought suit against Zeph T Hill, alleging that Hill had wrongfully taken and converted to his own use a large amount of personal property (merchandise) belonging to plintiff. The defense relied on at the trial was to the effect that defendant, Hill, as United States marshal, seized the property in execution of a valid judgment in the United States court against one Brasher; and that whatever title Grimes had to the property was obtained by a fraudulent conveyance to him by Brasher, and so was void as against creditors whom the marshal represented. To sustain this defense, Frank Grimes was called, and testified, in substance, that the original plan was for him and his brother William to take the property as joint purchasers; that, just previous to the conveyance, Brasher had said to witness 'Joe Williams will call on you. He is coming around there to have a talk with you. * * * Brasher told me * * * that he wanted to have a third party speak to me, because I wouldn't have to swear to no lies on the witness stand.' The witness then testified, circumstantially, to a conversation between himself and Williams, in which Williams represented that Brasher was in failing circumstances, and that his business would be closed up that next day; and proposed, in behalf of Brasher, a fictitious and fraudulent sale to the Grimes Bros., to enable Brasher to settle with his creditors, and then that Brasher should have his property and business back again. The witness further testified that, in pursuance of such proposition, he and his brother entered into negotiations with Brasher, but that at the last moment he (Frank) refused to have anything to do with the deal. The transfer, however, was immediately consummated with his brother William. In rebuttal of the testimony given by Frank Grimes, plaintiff called Joseph Williams, whose attention was directed to the time and place of the conversation between himself and Frank Crimes, and he was asked to give his statement of the conversation. Williams' testimony on that subject was quite brief, and of a very different character from that given by Frank Grimes. When it appeared that Williams could recollect nothing further, counsel for plaintiff proceeded to interrogate him by direct questions as to whether in that conversation he made certain of the damaging statements ascribed to him by the witness Grimes; but the court of its own motion refused to permit such questions to be asked, on the ground stated by the court, as follows. 'Mr. Williams has testified to his version of the mattter, and that ends it. You cannot ask Mr. Williams, 'Did not such a thing occur?' When you have asked him to state all that did occur, that is as far as you can go.' Counsel for plaintiff then offered to prove by the witness Williams that 'he did not tell to Frank Grimes that Brasher was in failing circumstances, or that Brasher's establishment would be closed the next day; that he (Williams) did not tell to said Grimes at the place named by said Grimes, or at any time or place, that, if he (Grimes) took or bought the retail business or stock of Brasher, when Brasher had fixed up he could give the stock back to Brasher, and Brasher would go on.' This offer was objected to, and the objection was sustained. Plaintiff's counsel duly reserved exceptions to these several rulings of the court, and such rulings are assigned for error.for the grantor, which showed fraudulent intent on the part of the latter. Held, that plaintiff could interrogate W. by direct questions for the purpose of contradicting such testimony.

Syllabus by the Court

1. A party may interrogate his own witness by direct questions for the purpose of contradicting previous adverse testimony.

2. To invalidate a purchaser's title to property on the ground that the purchase was made in fraud of the rights of creditors, it is necessary to prove that the vendor made the conveyance with intent to hinder, cheat, or defraud his creditors, and also that the vendee was cognizant of such fraudulent intent in making the purchase.

3. These two matters may be proved conjointly or separately, by one witness or many, by direct or by circumstantial evidence. A wide range of evidence is allowable to show fraudulent intent, as well as notice thereof, in such transactions.

4. Parties committing such frauds usually seek to conceal the direct and positive evidences of their guilt; and hence resort must generally be had to circumstantial evidence. Circumstances, however slight, relating to the transaction, and tending to throw light upon its character, are competent evidence so far as the same are connected with the parties.

5. A party attempting to impeach the validity of a conveyance on the ground of fraud may give in evidence declarations of the vendor or vendee tending to reveal the character of the transaction, when such declarations are shown to have been made either in person or through the authorized intervention of a third party at or prior to the consummation of the sale.

6. A party, having introduced certain testimony tending to sustain his side of the issue, is precluded from denying the materiality of such testimony for the purpose of preventing its contradiction.

Lucius P. Marsh, for plaintiff in error.

Joseph N. Baxter, for defendant in error.

ELLIOTT, J., ( after stating the facts as above.)

The plaintiff acquired the property in controversy by a conveyance from one Brasher. Under the issues the burden of showing that the plaintiff's title was fraudulent and void as to the creditors of the vendor rested upon the defendant. To sustain this burden, Frank Grimes was called and testified to certain statements made to him by one Joseph Williams, as the representative of the vendor, concerning the purposes of the proposed sale. In rebuttal, the plaintiff called said...