Holly v. William H. H. Augustine.

• Court: Appellate Court of Illinois
• Writing for the Court: LELAND, J.
• Citation: Holly v. William H. H. Augustine., 2 Ill.App. 108, 2 Bradw. 108 (Ill. App. 1878)
• Decision Date: 30 June 1878
• Parties: ELIZABETH HOLLYv.WILLIAM H. H. AUGUSTINE.

2 Ill.App. 108

2 Bradw. 108

ELIZABETH HOLLY

v.WILLIAM H. H. AUGUSTINE.

Appellate Court of Illinois, Second District.

June Term, 1878.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Grundy county; the Hon. JOSIAH MCROBERTS, Judge, presiding.

Messrs. HILL & DIBELL, for appellant.

Messrs. JORDAN & STOUGH, for appellee; that circumstances tending to show fraud are always admissible; and a jury may infer fraud from circumstances, cited Reed et al. v. Noxon, 48 Ill. 323; Bryant et al. v. Simoneau, 51 Ill. 324; Strauss et al. v. Kranert, 56 Ill. 254; Carter v. Gunnels et al. 67 Ill. 270; O'Donnell v. Segar, 25 Mich. 367.

That appellant is bound by the statements of her husband, acting as her agent: Doan et al. v. Duncan, 17 Ill. 274; Goodrich v. Hanson et al. 33 Ill. 499; Whiteside v. Margarel, 51 Ill. 507.

There being no visible change of possession, the declarations of the judgment debtor subsequent to the pretended sale are admissible against appellant: Whitaker v. Wheeler, 44 Ill. 440; Amick v. Young et al. 69 Ill. 542; Wyckoff v. Carr, 8 Mich. 44.

Appellant and the judgment debtor had entered into a combination to defeat his creditors and his declarations as to the ownership of the property are admissible against appellant: Barron v. The People, 73 Ill. 256; Philpot et al. v. Taylor, 75 Ill. 309; 1 Greenleaf on Ev. § 111.

There being no visible change of possession after the pretended sale, it was fraudulent as to creditors: Topping v. Lynch, 2 Rob. 484; Butler v. Stoddard, 7 Paige, 163; Jones v. O'Brein, 4 J. & Sp. 58; Searing et al. v. Butler et al. 69 Ill. 575.

The verdict of a jury will not be disturbed when the evidence is conflicting, unless it is manifestly against the weight of evidence: Morgan v. Ryerson, 20 Ill. 344; Martin et al. v. Ehrenfels, 24 Ill. 187; Pullian v. Ogle, 27 Ill. 189; Millikin v. Taylor, 53 Ill. 509.

It is the province of a jury to determine upon the credibility of a witness, and the mere number of witnesses to a fact should not always control; First Nat. Bank v. Haight, 55 Ill. 191; Carey v. Henderson, 61 Ill. 378; Chicago City R'y Co. v. Young, 62 Ill. 238; C. B. & Q. R. R. Co. v. Dickson, 63 Ill. 151; Gill v. Crosby, 63 Ill. 190; Corgan v. Frew, 39 Ill. 31; McClurkin v. Ewing, 42 Ill. 283.

A sale of personal property not accompanied by a continuous and visible change of possession, is fraudulent and void as to the creditors of the vendor: Rev. Stat. 1877, 521; Rhimes v. Phelps, 3 Gilm. 455; Thompson v. Yeck, 21 Ill. 73; Rothgerber et al. v. Gough, 52 Ill. 436; Topping v. Lynch, 2 Rob. 484; Butler v. Stoddard, 7 Paige, 163; Stanley v. Cobbins, 36 Vt. 422; Gleason v. Day, 9 Wis. 498; Smith v. Welch, 10 Wis. 91; Osen v. Sherman, 27 Wis. 501; Hilliard on Sales, 176.

LELAND, J.

This was an action of replevin, brought by appellant against appellee, who, as a constable, had taken corn and hay on execution against Geo. P. Augustine, father of appellant. On the trial below the attorneys, to save trouble, entered into this stipulation: “Stipulating to dispense with proof of demand and refusal before suit brought, and issue levy and proof of execution and judgment in this case; it is agreed that the only question in issue shall be whether the plaintiff, or Geo. P. Augustine, at the commencement of this suit was the owner of the property replevied.”

After the trial had progressed awhile, the attorneys found that they did not agree as to the proper construction to be put upon this stipulation; and when it came to drafting instructions they continued to disagree. And thus, as is often the case, the attempt to save a little trouble made more than it would if they had been less economical.

This is not the worst of it. The writer of this opinion and his brethren are not entirely harmonious on the subject. The strict literal construction, perhaps, is that it means who, inter partes, was the owner, the father or his daughter?

The writer of this opinion is disposed, after construing it by the light of surrounding circumstances, to say that it means who, as against the constable with the execution, was the owner of the property, and so his Honor, the judge presiding at the trial, thought. Although, quite unusual, a masculine jury found against a feminine plaintiff, which makes rather a prima facie case that the jury was right; we apprehend, however?? because the law of the trial required it.

Appellant, who was a married woman, claimed that in August, 1873, she and her husband were living with her father on the farm of the latter; that her father's wife, who was her mother, was ill; that she and her husband were about to leave for Chicago, and had their trunks packed; and that under these circumstances her father told her that if they would stay, and that if she would take charge of the house, as housekeeper, he would give her the use of the farm, and give her also the stock and farming utensils on it, and the household goods, the whole of no great value; that her father was in an unembarrassed and comfortable pecuniary condition at this time; that she accepted the proposition and remained, and that she was housekeeper, and that she worked the farm through her husband. Her mother died the following September.

The theory of appellee is, of course, the usual one--that the father was the real owner of the stock, farming utensils, furniture and farm, as before; and that the arrangement was one to avoid the inconveniences attendant upon his having too many creditors. Appellant and husband remained on the farm during the years 1874, 1875 and 1876, and were there when the levy was made on the corn and hay raised by them in 1876. The husband attended mainly to the business of farming.

The father was rather a coal miner than a farmer. He also kept store a little. The evidence was conflicting, and there was no such preponderance in favor of the plaintiff below, as to render it proper for that reason alone, to disturb the finding, although as to the corn and hay, the evidence preponderates in favor of the daughter and husband having raised it, rather than that the father did. It would seem that they carried on the farm, and allowed him to attend to his store-keeping and mining business, while they raised the crops. If this were so, it does not matter much whose the farming tools, stock and household goods were in 1873, except as a circumstance from which it might be inferred that if there were deception as to them, there might be as to the corn and hay raised in 1876.

The rulings in relation to the admissibility of evidence were in some instances erroneous and somewhat peculiar.

One Bailey was permitted, against objection, to testify that the husband came to his place in Mazon to buy a boar-pig, and told witness he was buying the pig for Geo. P. Augustine, as near as he could recollect; that it was to go on the farm there. A motion to strike out this evidence was made, and overruled. One Ferris was allowed, against objection, to state for defendant that the father offered to sell him some cattle in 1876, also that he owed him, and proposed to give a mortgage upon some horses and a mower. After he had done testifying, a motion was made by plaintiff's counsel to strike out all the evidence of the witness, which was granted, and said evidence ruled from the jury. Then there was a motion to strike out all the evidence offered by defendants in relation to other property than that replevied, and the motion was also granted except as to the evidence of Bailey about the boar-pig.

After this the defendant Augustine, the constable, testified that he had previously levied upon some cattle upon the farm, which the father turned out as his. And thereupon the court, either because of this evidence, or because of a change of opinion otherwise produced, sua sponte directed that the testimony of the witness Ferris, and the evidence heretofore excluded in relation to other property than that replevied in this suit, be restored to the jury, and that the previous ruling excluding the same, be rescinded, to which plaintiff excepted.

Objection was made by the plaintiff to a conversation held between the defendant and the father in relation to the property other than that in suit, which defendant was called upon by his attorney to state as a witness, and which conversation was not in the presence and hearing of plaintiff. The court allowed the witness to introduce his own conversation, as well as that of the father, in evidence. The substance of the conversation was that when witness previously went to the father with one other execution, he told witness that he would turn out property to satisfy it, if he would give him the full time of the execution. He said: “Go and take some two-year olds--go and take any of them; they are all mine.” “He did not tell me the cattle or property belonged to Mrs. Holly at the time of presenting any execution.” Witness also said that he levied on the cattle, and sold part--that he levied four executions.

It does not appear, by the evidence of this witness, whether the levy of other executions was before or after the alleged gift, or rather sale, from the father to the daughter; but perhaps by the evidence of the latter two, it is made to appear to have been after. If before, it was irrelevant; if...