Watson v. Melchor
| Decision Date | 20 January 1880 |
| Citation | 42 Mich. 477,4 N.W. 200 |
| Court | Michigan Supreme Court |
| Parties | NEWELL WATSON and others v. THADDEUS W. MELCHOR and others. |
Formal objections to a deposition will not be considered on a hearing of the cause, where they could have been made before. Depositions taken during the life-time of a party will not be rendered inadmissible by his death. Certain conveyances by a debtor to his wife, and by her to a son, held fraudulent as to creditors. In the case of one who has given notes for the purchase price of lands from a fraudulent grantee, the burden is on him to show payment before notice of the fraud.
Appeal from Van Buren.
George W. Lawton, for complainant.
Knowles & Rowland, for defendants.
This bill was originally filed against Thaddeus W. Melchor and Jennie Wilson, as well as against Harriet Melchor and Edwin B. Melchor. Defendants Louis and Charles Melchor were brought in as heirs on the death of Thaddeus. The bill was voluntarily dismissed against Jennie Wilson, who claims interest as a bona fide encumbrancer.
The bill was filed in aid of an execution levied on lands conveyed by Thaddeus to his wife Harriet, and in part conveyed by her to their son Edwin--the conveyance being charged as in fraud of complainants as judgment and execution creditors. The conveyances to Harriet Melchor were made at different times in the year 1874. The judgment rendered in July, 1875, was upon claims existing before any of these transfers. The property consisted of several lots in Paw Paw, one of which seems to have been occupied as a homestead during all this time, and is still occupied by the grantee, Mrs. Melchor. It does not appear that any of them are minors.
A preliminary question is raised concerning the most direct testimony in the cause, which requires notice. A deposition was taken of complainant Norton, referring to matters which it is claimed were within the equal knowledge of Thaddeus Melchor, and which it is insisted should be excluded--First because the deposition was not regularly taken, and is said not to have been regarded by the court below; and, second because the transactions were not receivable in evidence as against the representatives of the deceased party.
The deposition was probably taken regularly, as it is otherwise difficult to account for several things concerning it. But, whether regular or not, it was recognized as in the cause by a written stipulation. It is claimed that this stipulation was not in such a shape as to cure the irregularity. We need not discuss this, because there was no motion to suppress. The practice has never allowed formal objections on the hearing, where they could have been made without difficulty before. Boxheimer v. Gunn 24 Mich. 372; Cook v. Bell, 18 Mich. 387.
If the deposition was on file, it makes no difference whether the court below received it or not. It is evidence which ought to have been received. The testimony was taken during the life of Thaddeus Melcher, and his subsequent death cannot effect its validity, or render his admissions incompetent.
The other testimony objected to was the record of another suit by creditors attacking the same transaction, and allowed to go by default. There was also evidence of an answer in the same cause signed by all the parties, but, for reasons connected with an arrangement, never filed.
This answer is clearly receivable as a deliberate and positive admission of facts. It cannot lose its quality of an admission simply because it was never filed, provided it was meant at the time to be an admission, of which there can be no doubt. We have not found it necessary for our own satisfaction to consider the record itself, and it is not important to refer to the rules of evidence bearing on it.
It appears very distinctly from this answer that no consideration, in fact, passed from Harriet to Thaddeus...
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