Williams v. Eikenbury

• Decision Date: 06 February 1889
• Citation: 41 N.W. 770,25 Neb. 721
• Parties: JAMES W. WILLIAMS, PLAINTIFF IN ERROR, v. JAMES C. EIKENBERRY, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

41 N.W. 770

25 Neb. 721

JAMES W. WILLIAMS, PLAINTIFF IN ERROR, v. JAMES C. EIKENBERRY, DEFENDANT IN ERROR

Supreme Court of Nebraska

February 6, 1889

ERROR to the district court for Cass county. Tried below before BROADY, J.

REVERSED AND REMANDED.

J. H Haldeman, for plaintiff in error.

Cross-examination of Holland: Frederick v. Ballard, 16 Neb. 565. Railroad Co. v. Linn, 15 Neb. 240. Gridley v Bingham, 51 Ill. 153, 156. Declaration of vendor Kennedy v. Divine, 77 Ind. 490. Bogert v. Phelps, 14 Wis. 88. Visher v. Webster, 13 Cal. 58-61. Weinrich v. Porter, 47 Mo. 293. Miner v. Phillips, 42 Ill. 123. Scheble v. Jordon, 30 Kan. 354. Jones v. King, 86 Ill. 226. Campbell v. Holland, 22 Neb. 587. Admission in evidence of attachment proceedings: Repine v. McPherson, 2 Kan. 340. Stoddard v. McMahan, 35 Tex. 267-273. Wade on Attachment, Sec. 140. Drake on Attachment, Sec. 204. Bennett v. Zabriski, 2 N. Mex., 7-11. Cheadle v. Riddle, 6 Ark. 480. Kinney v. Heald, 17 Ark. 397. Oberfelder v. Kavanaugh, 21 Neb. 492. Bump on Fr. Con. (3d Ed.), 462. Williams v. Eikenberry, 22 Neb. 216.

H. D. Travis and E. H. Wooley, for defendant in error.

Declaration of vendor: Guidry v. Grivot, 14 Am. Dec., 193. Martin v. Reeves, 15 Am. Dec., 154. Instruction 13 cured error, if any, in admission of evidence: Sparr v. Wellman, 11 Mo. 230. Northampton Bank v. Balliet, 42 Am. Dec., 297. Admissibility in evidence of attachment proceedings: Kinney v. Heald, 17 Ark. 397. Drake on Attachment, Secs. 117, 119, 162.

OPINION

REESE, CH. J.

This was an action of replevin instituted in the district court against the sheriff of Cass county, for the purpose of recovering the property described in the petition of plaintiff in error.

The cause was tried to a jury, which trial resulted in a verdict and judgment in favor of defendant in error, and was brought into this court by proceedings in error, where the judgment of the district court was reversed and the cause remanded. See Williams v. Eikenberry, 22 Neb. 210. Another trial was had in the district court, resulting in the same verdict and judgment as at first, and the cause is again presented for review by proceedings in error.

It appears from the evidence that Lawrence Holland was, at one time, engaged in the lumber business in the town of Manley, in Cass county, and that such an arrangement was made between himself and plaintiff in error here as resulted in the transfer of the lumber yard to plaintiff in error. Holland being indebted at that time, his creditors soon after instituted attachment proceedings against him, and levied upon the lumber yard in dispute, when plaintiff in error instituted an action in replevin for the possession of the property.

Lawrence Holland was called as a witness for plaintiff in error, and upon his examination-in-chief he testified to the transfer to plaintiff in error. Upon his cross-examination he was asked if he did not, at a certain time, which was after the transfer to Williams, and after Williams had taken possession of the lumber yard, say to Mr. Roberts, cashier of the Commercial bank, at Weeping Water, that he would turn the lumber yard over to him. His answer was that he did not. He was then asked what he did say, when he answered: "I told Roberts that I had turned the yard over to Mr. Williams. That I had sold the yard to Mr. Williams, as he had suggested to me to do," etc.

At another time, on cross-examination, substantially the same question was asked, to which objection was made, and which objection was overruled, and after exception entered, witness answered, "No."

Other questions of similar import were asked with like results.

Among the witnesses called for the defense were Mr. Travis, Mr. Roberts, and Mr. Wooley, who were all interrogated upon the same matter, and over the objection and exception of plaintiff in error were permitted to testify, in substance, that in a conversation at about the same time as that mentioned in the cross-examination of Holland, he, Holland, offered to turn over to the plaintiff in the attachment suit the lumber yard, which was then in the possession of plaintiff in error, and which had been for some considerable time.

The question presented by the issues in the case was, as to the validity of the purchase of the lumber yard from Holland by Williams, and it would seem that the purpose of defendant in error, in introducing the testimony referred to, was to impeach the witness Holland, and also for the purpose of proving title to the property mentioned, at the time of the declaration.

In the testimony of Mr. Wooley, the following occurs:

Q. I also ask you to state whether or not, about the 12th day of January, 1886, Mr. Holland, in the Commercial bank, said to you that he would turn over this Manley lumber yard upon the indebtedness?

Haldeman objected. Incompetent, immaterial, and irrelevant to affect the title. Overruled, and exception.

A. Yes, sir, he did.

We think it quite clear that Williams' title could not be affected by any statement made by Holland, after possession was taken by Williams, in disparagement of such title.

In Bump on Fraudulent Conveyances, page 587, it is said: "The existence of a fraudulent intent must always be proved by evidence which is competent as against the grantee. The acts and declarations of the debtor, however, made after the transfer, have not, in the absence of any proof of a conspiracy, any tendency to prove the cause or motive of the act. After the transfer is consummated, the debtor becomes a stranger to the title for all purposes, and his acts and declarations are no more binding on the grantee than are those of any stranger to the transaction. They are in their nature hearsay and irrelevant. No person, moreover, should be allowed to defeat his transfer by his own acts or words. If the declarations or acts are made or done with the assent of the grantee, or if the debtor is produced as a witness, then they may be used as evidence upon other grounds, not merely as intrinsically competent of themselves. If the debtor and grantee are both parties to the suit, the subsequent declarations of the debtor are competent evidence against him."

That part of the above quotation referring to the matter of the production of the debtor as a witness, is followed by the citation of Borland v. Mayo, 8 Ala. 104. Venable v. Bank, 2 Peters 107, and Knight v. Forward, 63 Barb. 311.

We have carefully examined these cases, and are convinced that the cases of Borland v. Mayo and Venable v. Bank, are not in point.

Knight v. Forward is a case quite similar to the one at bar, in some respects. The action was in trover, for the value of a cutter, sulky, harness, and cow. The answer was a general denial. The property in dispute had been levied upon by virtue of an execution, and sold. It appeared upon the trial that a bill of sale of the property in question, and other property, was made and delivered by the judgment debtor to the plaintiff in that action, in payment of a note given by the debtor to another party, and which was then held by the plaintiff. The debtor was a witness to prove the transfer, when he was asked, on cross-examination, whether he had not at a certain time, subsequent to the alleged transfer, offered to sell the harness and cutter in question to the defendant in the action as his, witness', property. This was objected to, and the objection was sustained. The supreme court held the action of the trial court in sustaining this objection to be erroneous. It is said that such declarations were not competent to impair and destroy the title of the plaintiff; that they were utterly incompetent on the merits of the controversy; that they could be used only for the purpose of affecting the credibility of the witness, either by his own answers or by the evidence of others called to show that he did make the offer mentioned in the action, should he deny it.

The language of the opinion is, in some respects, unsatisfactory. It is argued at some length that the alleged offer to sell was wholly inconsistent with the truth of his testimony, that he had previously sold to another party.

We quote the following from the opinion of the learned judge "But if I am wrong in supposing that he might contradict the witness, still I entertain no doubt but that he had the right to have the question answered, although he may not have had the right to contradict him. It was legitimate cross-examination, and the party was entitled to the witness' answer. If he admitted making the offer, the defendant had accomplished his object. If he denied it, the answer would conclude him. I am of the opinion that the justice erred in rejecting the evidence, and that the judgment of the county court and of the justice should be reversed." What is meant by the language, "if he denied it, the answer would conclude him," in view of the general discussion in the opinion, it is difficult to say. We cannot see that the witness would be particularly concluded by the denial, as he claimed no interest in the property. If it is meant that the answer would conclude the defendant, it is at variance with the other portion of the opinion, for the argument is, principally, all to the effect that other witnesses could be called to contradict the declarations. So far as we have examined the books, all agree that the declarations of one from whom a party obtains title to property, made after the transfer of title, and in derogation thereof, is inadmissible as against the vendee, with the exception that it may be admitted for the purpose of proving fraud on the part of the vendor, where there is evidence of a conspiracy to defraud, or made in the presence of the vendee, or when made so near the time of the sale as to...