Trumbull v. Hewitt

• Citation: 31 A. 492,65 Conn. 60
• Parties: TRUMBULL v. HEWITT et ux.
• Decision Date: 01 September 1894
• Court: Connecticut Supreme Court

31 A. 492

65 Conn. 60

TRUMBULL

v. HEWITT et ux.

Supreme Court of Errors of Connecticut.

Sept. 1, 1894.

Appeal from superior court, Windham county; Hamersley, Judge.

Action by Jonathan Trumbull, trustee, against Gilbert L. Hewitt and wife to set aside certain alleged fraudulent conveyances of real estate. Prom a judgment for plaintiff, defendants appeal. Affirmed.

Charles E. Perkins and Solomon Lucas, for appellants.

Jeremiah Halsey and Donald G. Perkins, for appellee.

TORRANCE, J. This is a complaint by a trustee in insolvency, alleging, in substance, that the three conveyances of real estate described therein, made by the defendant Gilbert L. Hewitt to the other defendant, his wife, are fraudulent and void as against the creditors whom the plaintiff represents, and praying that the same may, for that reason, be set aside. In the court below judgment was rendered in favor of the plaintiff, and from that judgment the defendants take this appeal.

The principal question presented by the appeal is, in effect, whether or not Mrs. Hewitt can hold the lands so conveyed to her as a purchaser in good faith and for a valuable consideration. Before discussing that question, however, it may be well to dispose of certain matters of minor importance assigned for error in the reasons of appeal. One of these is whether paragraphs-14 1/2, 15, and 17 of the finding ought to be treated as a part of the record. The court below rendered judgment in this case on the 5th of August, 1893, and the notice of appeal was filed August 9th. On this last-named day the defendants filed the following request: "Request is hereby made that the time for filing the request for a finding, under the provisions of General Statutes, § 1132, be extended ten days; that is, until the 29th day of August, 1893." In pursuance of the rule of court regulating the proceedings under section 1132, the request was granted. On the 28th of August the defendants filed a written request for a finding, containing a draft of a proposed finding. Subsequently, counsel for the defendants claimed that said request and draft of proposed finding were also intended as a request to the judge to incorporate in the finding such facts as they claimed to be proven by the evidence, under the provisions of chapter 174 of the Public Acts of 1893. The court below did not take this view of the matter, but made the finding under the provisions of section 1132 of the General Statutes and the rules of court regulating the same. The record then proceeds as follows: "But, in order that the finding may be complete, in case the supreme court of errors shall be of the opinion that the defendants have legally filed a request for the incorporation of facts in the finding under the act of 1893, I include in paragraphs 14 1/2, 15, and 17 all of the facts set out in the draft for finding filed, by the defendants, which I find proven by the evidence and not included in other paragraphs, although these facts cannot properly, and should not, be incorporated in the finding, unless the defendants' draft for a proposed finding is held to be 'a legal request for their incorporation in the finding under the act of 1893.'" We think the court below, in holding that this appeal was not taken under the provisions of the act of 1893, took the correct view of the matter; and, consequently, that the aforesaid paragraphs thus contingently made a part of the finding ought not to be regarded or treated as a part of it. We notice this point, however, only as touching a matter of practice, for, in the view which we take of the principal question in the case, the facts set forth in the paragraphs in question become of no importance.

Upon the trial of the case the plaintiff offered in evidence two depositions which had been duly taken at Denver, Colo., upon lawful notice given to the defendants. To the admission of these depositions the defendants objected, on the ground that they were not the depositions of the parties, but were merely copies of former depositions given by the deponents in another case. The court below, however, found the fact upon which this objection was based to be untrue, and that "the depositions in question were the depositions of the parties duly given at the time and place certified by the magistrate." That finding is conclusive upon this appeal.

Upon the trial below "Mrs. Hewitt testified in her own behalf that, at the time of the conveyances to her, she had no knowledge that her husband was in embarrassed circumstances, and knew nothing about his business, or any intention to derrand creditors. She was cross-examined as to her knowledge of the transfer to her of the Advertiser Building in Norwich, which had been placed in her name in 1888 by her husband, and which she claimed she had bought. Having said she did not negotiate for the purchase, she was asked if she received the deeds from the parties. This question was objected to as irrelevant, and was admitted by the court. The defendants also asked to have all cross-examination as to the Advertiser Building stricken out. It was claimed by the plaintiff as showing knowledge of facts tending to show the condition of Hewitt The court refused to strike out the testimony. Mrs. Hewitt was also cross-examined as to the transfer to her by her husband of some land in Norwich, on Warren street, in 1888, which transfer had also been the subject of a suit, for the purpose of showing her knowledge of her husband's condition, and for the further purpose of showing that at the time she did not consider her husband indebted to her. The question, 'Did you pay anything for the transfer of that lot?' was objected to by the defendants as res adjudicata, and was admitted by the court." We cannot see that the court below erred in any of these rulings. One of the questions in issue was whether Mrs. Hewitt in 1889 had any knowledge of her husband's business, and of his then embarrassed financial condition, and of his intention to defraud his creditors. She testified that she had no such knowledge. Upon this issue her knowledge of his business and of his financial condition In 1888 was a relevant fact; and it was for the sole purpose of showing her knowledge of his business and financial condition in 1888 that she was cross-examined concerning the transfer to her of the Advertiser Building. Upon this question of her knowledge of her husband's affairs in 1888, we think the cross-examination objected to was permissible. Hoxie v. Insurance Co., 32 Conn. 37. The evidence as to whether or not she paid anything for the transfer to her of the Warren street property was also admissible for the purpose for which it was offered. Mrs. Hewitt claimed that from about the year 1876 down to 1889 her husband had been continuously indebted to her in a large amount. If she had paid him in 1888 for the Warren street property, and while he was still largely indebted to her, this would tend to discredit her claim. The question objected to was clearly proper upon cross-examination. Moreover, even if the court below had erred in all of the rulings now in question, we cannot see how this harmed the defendants, or either of them, for the evidence objected to was offered for the ultimate purpose of showing actual knowledge on the part of Mrs. Hewitt of her husband's Insolvency, and of his intent to defraud his creditors; but the court has found that "she had no actual knowledge of the insolvency, no conscious intent to perpetrate a fraud, and no actual knowledge of the intended fraud" of her husband.

Upon the trial below the plaintiff offered evidence of the sale of building lots from the lands described in the complaint, after the conveyance of said land to Mrs. Hewitt in 1889, and of the prices obtained for said lots, for the purpose of showing that she had in fact received from such sales more than the amount she might have given for the land. The plaintiff claimed this evidence contingently, in case "it might appear as a part of the defense that Mrs. Hewitt acted in good faith, and that there was some, although a greatly inadequate, consideration"; and claimed that in that event he would be entitled to relief in this proceeding in respect to the excess of the value of the land over the consideration paid, and that the evidence in question would be admissible. To the admission of the testimony for this purpose the defendants objected. The court said that "the evidence might be admissible if a condition arises which the plaintiff says may arise in the case, and we have got to come to a matter of accounting; but excluded the evidence for the present." Counsel thereupon agreed, in order to avoid detaining the witnesses, that their testimony might be taken out of order, subject to the defendants' objection, and this was done. Subsequently, the defendants offered evidence tending to show consideration for the conveyances to Mrs. Hewitt, and were at issue with the plaintiff as to the adequacy of that consideration; and Mr. Hewitt testified to the same sales of lots in full, and to his expenses incurred in so doing, and to the disposition which was made of the money received for such lots. In the twelfth reason of appeal the action of the court in thus admitting the aforesaid testimony contingently is assigned for error. There are two good and sufficient answers to this claim. In the first place, error cannot properly be predicated of the action of the court in receiving the testimony contingently, under the circumstances disclosed by the record. The court had already ruled that the testimony was, when offered, inadmissible. It intimated, however, that in a certain contingency it might be admissible; thereupon the parties, to accommodate the witnesses, agree that it may come in, subject to the defendants' objection, to be used if the contingency should arise. Clearly, under these circumstances, it was not improperly received; and it is of this alone that the defendants complain...