Howland v. Fuller

• Decision Date: 01 January 1863
• Citation: 8 Minn. 30
• Parties: FREDERICK HOWLAND vs. JOSIAH S. FULLER.
• Court: Minnesota Supreme Court

8 Minn. 30

FREDERICK HOWLAND vs. JOSIAH S. FULLER.

Supreme Court of Minnesota.

Appeal from order of district court, Rice County.

Points and authorities for appellant: —

1. The judge erred in receiving, against plaintiff's objection, evidence of the declarations of Charles M. Babcock, the execution debtor, under whom the defendant justified as sheriff of the county (see the evidence of George Douglass and Thomas Bradway). Such declarations having been made by the vendor subsequent to the sale and transfer to the plaintiff. 14 Mass. 245; 4 Minn. [211]; Derby & Day v. Gallup, 5 Minn. [119.]

2. The facts necessary to show a fraudulent sale and purchase are not sufficiently alleged in the answer. And the judge erred when, under the third branch of plaintiff's fourth request he instructed the jury, "that fraud in the plaintiff's purchase was sufficiently pleaded in the defendant's answer." Second, his only allegations in the pleadings as to a fraudulent sale are in the third paragraph of the defandant's answer, made on information and belief, "that the claim of property and ownership by the plaintiff herein, to said goods and chattels, is through and by a pretended and fraudulent sale from the said Charles M. Babcock to the plaintiff." This is insufficient. Conclusions of law based upon supposed facts, not alleged, are wholly insufficient as a pleading. "Wherever a party seeks to maintain his cause of action or defense, on the ground of fraud, the facts must be alleged from which a fraudulent intent may be judicially inferred." Fisher v. Fredenhall, 21 Barb. 84; Voohies Code (ed. 1858), 143, and cases there cited.

3. It was error on the part of the court to instruct the jury, at defendant's request, "that it is not in issue in this case whether the property in question was exempt from execution of the judgment creditor, and is not to be taken into consideration by the jury." First, because the defense rested wholly on the ground of alleged fradulent intent to delay, defeat, and defraud, creditors, and the court had held, all the way through the trial, that the same was sufficiently pleaded, and so instructed the jury. Second, because the mind acts only from motives; and the intent of the parties and the character of the sale, whether fraudulent as to creditors or, bona fide, depends necessarily on the object sought thereby to be attained. Third, because the proposition is a contradiction in terms, and a solecism in law, that the debtor sells and the vendee purchases specific property, with the mutual intent to place the same thereby beyond the reach of creditors, when the constitution and laws of the country secure that identical property to the vendor, and declare it sacred from the grasp of creditors.

Points and authorities for respondent: —

1. The declarations of Charles M. Babcock, the vendor of the property, were competent evidence, he having remained in possession of it up to and after the time when the declarations were made. Adams v. Davidson, 10 N. Y. 313; 3 Carr. & P. 495; 17 Penn. St. 143; 13 N. H. 267.

2. But the declarations themselves, being in harmony with the testimony of the plaintiff, and confirmatory of it, did no injury to the plaintiff's cause, and cannot possibly afford any ground for a disturbance of the judgment below. Farmers' Bank v. Planters' Bank, 10 Gill. & J. 442; Cooper v. Blood, 2 Wis. 46.

3. The charge of fraud is sufficiently set forth in defendant's answer. While it is undoubtedly a rule of pleading, that facts, and not conclusions of law, are to be stated, it is an equally true and familiar maxim, that facts only, and not the evidence of them, must be alleged in the pleadings.

4. But it was not necessary to plead the fraud specially. It might have been given in evidence, under the general denial in the defendant's answer, as tending directly to controvert the allegations of ownership in the plaintiff's complaint. Bond v. Corbett, 2 Minn. [248]; 4 Minn. [270]; Van Sant. Pl. (2d ed.), 401, 404, 461, 463.

5. Section 8, p. 571, Pub. Stat., requires the exempted article to be chosen by the debtor, etc. No evidence was offered on the trial as to any such choosing. The right to choose was a privilege personal to the debtor. Even if it was his only team, he might or might not claim its exemption. Unless the debtor did choose the property, it does not lie in the mouth of an alleged fraudulent vendee to set up for the debtor an exemption which he did not claim for himself. The statute does not allow this, and a wise regard for the object and spirit of the exemption law will not allow it to be arrested to cover up or facilitate fraud.

Batchelder & Buckham, and H. C. Lowell, for appellant.

Berry & Perkins, for respondent.

ATWATER, J.

This was an action of replevin, for a span of horses and whiffletree, claimed by Howland, plaintiff below, as his property. The defendant admits the taking, and justifies as sheriff under an execution in favor of Hans Christophersen against Charles M. Babcock, and alleging that the property belonged to said Babcock at the time of the levy. There was a jury trial, and verdict for the defendant. The plaintiff made a motion for a new trial, which was denied, and the plaintiff appeals to this court.

It appears from the evidence, that Howland claimed the property by virtue of the purchase of the same on the 8th of December, 1860. The levy was made on or about the 2d day of January, 1861. A good deal of testimony was taken touching the sale from Babcock to Howland, the defendant claiming that the sale was fraudulent. Upon the trial of the cause, George Douglass, a witness on the part of the defendant, was asked, "what conversation you may have had with Charles M. Babcock, if any, in reference to the purchasing or trading for the horses in question, subsequent to the eighth day of December last?" This question was objected to by the plaintiff on the ground that it referred to a time subsequent to the transfer. The objection was overruled, and the testimony admitted, to which plaintiff excepted. The witness answered that Babcock offered to trade him the horses for cattle, in May last. The object of this testimony was stated by defendant, but no other is apparent than to show that the plaintiff was not the owner of the property. The only tendency of the answer to the question was to show such fact. In Burt v. McKinstry & Seeley, 4 Minn. [204], and in Derby & Day v. Gallup, 5 Minn. [119], we held that declarations made by a party who has conveyed his title or interest in property, made subsequent to such conveyance, and disconnected with it, cannot be received to invalidate the title of the grantee, or...