Howard v. Coshow

• Decision Date: 31 October 1862
• Citation: 33 Mo. 118
• Parties: FRANCIS HOWARD, Respondent, v. WILLIAM COSHOW, Appellant.
• Court: Missouri Supreme Court

33 Mo. 118

FRANCIS HOWARD, Respondent,

v.WILLIAM COSHOW, Appellant.

Supreme Court of Missouri.

October Term, 1862.

Appeal from St. Charles Circuit Court.

Lewis & Alexander, for appellant.

The statements of Murdock were not admissible testimony against defendant without it being first shown aliunde that Murdock and defendant were combining and confederating together in the perpetration of a fraud. There is no distinction in principle between such admissions and those of an alleged partner. The partnersnip must first be proven, and this is never allowed to be done by the statements of the alleged partner himself. (Field & Beardslee v. Liverman, 17 Mo. 218; Reed v. Pelletier, 28 Mo. 173-177; Whitney v. Ferris, 10 Johns. 66; Buckman v. Barnum, 15 Conn. 68; Commonwealth v. Eberle, 3 Sergt. & Rawle, 9, 16, 19; Patton v. Freeman, Coxe, 113, 115; Reichart v. Castator, 5 Binney, 109, 113.)

II. Even if a proper foundation had been laid for the admission of Murdock's statements, the one which implied a doubt as to the legal sufficiency of the deed of trust would have been admissible on any ground whatsoever. (Crockett v. Morrison, 11 Mo. 3, 5; Polk's lessee v. Robertson, 1 Tenn. 463; Craig v. Baker, Hardin, 189; Leforce v. Robinson, Littell's Sel. Cases, 22; Boston Hat Co. v. Messenger, 2 Pick. 223; O'Neal v. Glover, 5 Gray, 161.)

III. The court erred in excluding the evidence offered by defendant to show that the Fisher judgment was satisfied by Murdock from his own resources. The plaintiff was taking out of the multiplicity of minor circumstances to elicit unfavorable presumptions as to the bona fides of the transaction; one of which was that from the large additional indebtedness assumed by Murdock at the execution of the deed of trust, the money to pay it was secretly furnished by the defendant.

Brodhead, Leet & Kerkel, John M. Krum, and Hindman, for respondent.

I. When two issues are tried before a jury and a general verdict rendered the court cannot reverse for error committed by the court in relation to one issue, when the verdict may be sustained upon the other issue to which appellant took no exception.

Whether the verdict of the jury was rendered upon the ground that the defendant had made a fraudulent conveyance of his property, or that he had absconded or absented himself from his usual place of abode, does not appear and cannot possibly be ascertained; either would be sufficient to sustain a verdict, and evidence was given upon both.

The defendant had the power to withdraw the issue of absconding, &c., from the jury if there was no evidence at all upon that subject, by requiring such an instruction from the court, by having the opinion of the jury separate upon each issue, or by requiring a special verdict, ( i. e. a finding of the facts by the jury.) Having neglected to avail himself of this right, he cannot now be heard to question the finding of the jury.

II. The admissions of Murdock, the beneficiary in the conveyance charged to be fraudulent, and proven to have been made about the time of the execution of the conveyance, to the effect that Coshow was not indebted to him, were entirely competent against the grantor, because,

1. They were admissions made against the interest of the party making them.

2. The issue before the jury was as to the right of the party making the admission at the time, viz., whether Coshow was indebted to Murdock at the time he conveyed the property to him. (1 Greenl. Ev. 181.

3. The party whose admission was charged with being particeps fraudis, and evidence had already been adduced to show, viz:

a. That Coshow had made a fraudulent deed by circumstances tending to show the following facts: That Coshow was in good circumstances; that he was not indebted to Murdock; that he suspiciously left the county of his residence; that Murdock, who was his nephew, met him outside of the county by appointment; that the object of leaving his residence was “to serve the Howells as Bigelow did;” that is, to hinder and delay them in collecting their debts--the last admission of the defendant himself sufficient of itself to stamp the conduct of Coshow as fraudulent without a single other fact.

b. That Murdock was the beneficiary in the conveyance.

Under these circumstances the declaration of the beneficiary was entirely competent. (Crockett v. Morrison, 11 Mo. 3.)

The defendant introduced evidence tending to prove that Murdock did pay the Fisher debt, and the source from which he obtained the money was entirely irrelevant; presumption being that it was his own money, (and not Coshow's,) the defendant could not suffer by that presumption.

III. The giving of the sixth instruction cannot be relied on by Coshow as error.

a. His conveyance recites the consideration to be a debt, evidenced by a note for $15,000, payable by him to Murdock. He cannot be allowed on the trial to substitute an entirely

different consideration, and prove that the consideration was not a debt but a collateral security to protect Murdock in the event that Murdock would thereafter pay Coshow's debts. The deed recites a debt; if, therefore, no debt existed and none created, the deed was without consideration, unless the court permit Coshow to contradict his own deed--to alter the terms of his own deed by parol evidence--to substitute one consideration for another.

b. But if Murdock did promise to pay Coshow's debts in consideration of the conveyance, the promise was verbal and within the statute of frauds, and was, therefore, no valid consideration.

Murdock, in that case, would have the property without liability to Coshow's creditors, for he made no promise to them; and without liability to Coshow, because that promise was by parol. That would make it fraudulent in law.

c. And lastly, what consideration did Murdock receive from Coshow for his undertaking to pay Coshow's debts? He obtained Coshow's note for $15,000, wherewith to pay Coshow's debts, but without assuming any liability which the creditors could enforce.

Coshow's property was gone, to which the creditors had a right to look. Murdock has assumed no liability to the creditors, and still held the property without himself paying any value for it.

In this aspect the conveyance of Coshow to Murdock was voluntary, and made to the grantor's own use, viz., to pay his debts.

In any way in which the conveyance may be viewed, it is fraudulent in law and in fact. (Pottle v. McDowell, 31 Mo. 62.)

DRYDEN, Judge, delivered the opinion of the court.

Howell sued Coshow on a note in the St. Charles Circuit Court, and served the summons by copy at his usual place of abode, left with a white member of his family over the age of fifteen years. Afterwards an attachment in aid was issued based upon two grounds:

1. “That the defendant had absconded or absented himself from his usual place of abode in this State, so that the ordinary process of law could not be served on him.”

2. “That the defendant had fraudulently conveyed or assigned his property or effects, so as to hinder or delay his creditors in collecting their demands against him.”

The truth of both allegations was put in issue by plea in...