Webber v. Jackson

• Decision Date: 17 January 1890
• Citation: 44 N.W. 591,79 Mich. 175
• Court: Michigan Supreme Court
• Parties: WEBBER v. JACKSON et al.

44 N.W. 591

79 Mich. 175

WEBBER v. JACKSON et al.

Supreme Court of Michigan

January 17, 1890

Appeal from circuit court, Saginaw county; C. H. GAGE, Judge.

S. G. Higgins, (Wisner &amp Draper, of counsel,) for appellant.

William H. Sweet, for appellees.

CAMPBELL J.

Complainant filed a judgment creditor's bill in aid of execution, and to reach equitable assets. On the 26th of September, 1884, he recovered a judgment in a suit upon a former judgment indebtedness against Andrew E. Jackson for between seven and eight thousand dollars. In April, 1884, while this suit was pending, it is claimed by defendant Timothy W. Jackson that he bought in good faith, and for a complete valuable consideration, a considerable amount of real estate in Saginaw county from his brother Andrew, being the land levied on by complainant; the consideration being $6,737.74 of past indebtedness given up.

The validity of this alleged arrangement is the only important question before us. If that was valid, there seems to be nothing else to get at as equitable assets or personalty. If it was not valid, its rescission involves the subsequent dealings in regard to rents, and other incidental profits and property, based on the ownership of the land. The defendant Andrew E. Jackson, instead of answering the bill seriously, filed a so-called "answer" which is full of impertinence, in the popular as well as the legal sense of that word, which deserves censure. As no answer under oath was asked, it amounts to nothing, except so far as it professes to show the nature of the transfer to Timothy; and in this it is not clear. Timothy, who is the defendant chiefly interested ostensibly claimed to be a bona fide purchaser for valuable consideration. His answer amounted to no more than an assertion of the fact, without explanation. But, instead of averring the fact that there was a conveyance, and that it was for value, he contents himself with saying that the conveyances, "if any were made by said defendant Andrew E. Jackson to this defendant, were made in good faith, and for a valuable consideration." Such an answer is not only without point, but it asserts no rights whatever in defendant, and is a circumstance of some meaning. Complainant put Andrew on the stand, and in a long examination, in which direct and cross-examination alternate frequently, the defense is, rather shadowed out than plainly sworn to, that in April, 1884, Andrew went to the state of New York, at Timothy's request, and had an accounting with Timothy and arrived at a balance due of the sum stated. It is not suggested or shown that Andrew had any counter-claims. The amount of debt is said to have been figured up by adding together several notes and express receipts, which are produced and identified by Andrew, but not by Timothy, who, however, says the amount named in the deed was due for loans. None of those items accrued within the period of limitation, except one. All the items of notes were, with that exception, dated in 1874, 1875, and 1876, and payable at from 10 to 30 days, except one, of December 5, 1874, for $130, at six months. Among these notes was one 30-day note, of $3,477.17. None of them had any place of payment. In each of them the word "order" had been changed to "bearer," which is a very uncommon thing in such business. Most of them had no appearance of handling. All were on the same printed or lithographed form, got up some years before, in the days of revenue stamps; and most of them had the left-head ornamental portion torn off, wholly or partially. There is no explanation why they, or some of them, had never been demanded or discussed during their legal life. There was no attempt to show that any of these notes represented any particular money...