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Nicol & Davidson vs. Crittenden.

55 497 62 16 77 606

NICOL & DAVIDSON, plaintiffs in error, vs. SIMEON E. CRIT

TENDEN, defendant in error.

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1. While it is true, in general, that a man is presumed to intend the natural

and probable consequences of his own acts, it is not true that he is presumed to intend all their necessary consequences. Consequences may be

necessary, and yet quite remote and unexpected. 2. That a given act was followed necessarily by delay to creditors, in the par

ticular case, however strong as a circumstance to be weighed by the jury, is not ground for presuming, as matter of law, that it was intended to have

that effect. 3. It is impossible that a sale can defraud creditors, unless it was made with

a fraudulent intent; and the nature of the intent will not be presumed as

matter of law, but must be inferred by the jury from the facts in evidence, 4. Where a sale, as to its general features, has all the elements of a complete

and absolute transmutation of property, a charge of the court, which instructs the jury correctly on the effect of the transaction considered in that aspect, is not erroneous because it does not go further and lay down the law, of conditional or incomplete sales, although there may be some slight evidence upon which to base such further charge, and although that evidence may have been discussed by counsel before the jury. The additional charge

desired should have been requested. 5. The purchaser at a sale intended to defraud creditors, if free himself from

all responsibility for the fraud, is not affected, upon afterwards discovering the seller's fraudulent intent, even though he has not then paid the purchase money, and the notes given for it have not passed beyond the control of himself and the seller, it not appearing that he alone could control the notes without the co-operation of the seller, or that the latter could have been induced by him to cancel or surrender the notes, which were negotiable

paper, 6. An innocent purchaser does not become affected by the fraud of the seller,

though the property be attached in the purchaser's hands before it is paid for, and before negotiable notes given for the price have passed to innocent

holders. 7. Where a sale is attacked by creditors as fraudulent, it is error for the court

to charge the jury, that if the fraudulent intent of the seller was not known to the purchaser the transaction would be good against creditors. To be protected, the purchaser must be without notice or grounds for reasonable

suspicion-not simply without knowledge. 8. A charge on the effect of failure to produce evidence within the power of

a party, is sufficiently definite and intelligible when it announces the presumption of law to be, that the evidence, if produced, would be prejudicial to the party. If competent for the court to declare in what respect and to what extent such failure would prejudice, attention should be called to these points by a request to extend and amplify the charge.


Nicol & Davidson vs. Crittenden.

9. It is not the province of the court, but of the jury, to determine whether

the case on trial is one in which this presumption arises; the existence of the absent evidence and the ability of the party to produce it being essen

tially questions of fact, 10. Long credit, failure to take security, great value, and present inability of

the purchaser to pay, are not so necessarily badges of fraud in a sale as that the court should so designate them, in charging the jury, without any direct request to do so. The peculiar nature and situation of the property, the want of demand for it in the general market, and the pursuits, prospects, and past relations of the parties, might render these things consistent with

the theory of a fair and honest sale. 11. That counsel insisted on the distinction between legal and moral fraud,

and read authorities in relation to the same, did not make it incumbent on the court to charge the jury upon that distinction, in the absence of any direct request to do so, and in the absence of any specific proposition em

bodying the doctrine contended for, and applying it to the present case. 12. In a contest between creditors and one claiming property as purchaser, it

is not error for the court to omit to explain to the jury the effect which a colorable sale, or one not designed to pass title, would have. In the absence of a request to charge on that subject, the court is justifiable in assuming that the jury would know, without instructions, that such a sale would pass

no title as against creditors. 13. There is no error apparent in the record, in the refusal of the court to dismiss the motion for new trial.

Claim. Presumption. Sale. Debtor and creditor. Fraudulent conveyance. Charge of Court. Evidence. Before Judge HOPKINS. Fulton Superior Court. October Term, 1874.

On the 2nd day of January, 1872, Nicol & Davidson sued out an attachment against H. I. Kimball for $18,000 00 ou notes dated in 1870 and 1871, on the ground that said Kimball absconds. At 9 o'clock A. M., January 3, 1872, said attachment was levied upon various items of property, real and personal, including the furniture, fixtures, etc., in the H. I. Kimball House, in Atlanta, Georgia. On the 26th day of October, 1872, judgment was rendered on the attachment against the property attached, for $14,900 20, principal, and $1,869 69, interest. S. E. Crittenden, soon after the levy, filed a claim.

During October term, 1874, said claim was tried and the property found not subject. Plaintiffs were unable to make a motion for a new trial during said term because the papers

Nicol & Davidson vs. Crittenden.

became lost, or were mislaid, and for this reason, on motion of plaintiffs counsel, the judge passed an order permitting plaintiffs to file their motion trial at the next succeeding term.

On the first day of that term plaintiffs did file their motion for a new trial on the following, among other, grounds :

1st. Because the court failed to charge the jury the following legal proposition which plaintiffs' counsel, in their argument, insisted on as a legal rule, and read authority in support of-the court, on concluding the charge given, not asking or requesting counsel on either side if they had any further charge to request, to-wit: “Every man is presumed to intend the necessary consequences of his act, and if an act necessarily delays or defrauds creditors, then the law presumes that it is done with a fraudulent intent.”

2d. Because the court, having charged as follows, to-wit: “It is said that Kimball, at one time, was owner of this property; that he purchased it, and afterwards sold it to the claimant, Crittenden, and that after that sale the attachment in this case was levied. Look to the testimony to ascertain whether when the attachment was levied Kimball was the owner of the property in dispute. If you find from the testimony that at one time he was the owner, then did he subsequently sell it to Crittenden, the claimant? Look to the testimony and see if there was a contract between Kimball and Crittenden by which Kimball sold this property to Crittenden. If that occurred, and the furniture or property of which Kimball was owner was sold to Crittenden, and the terms of the sale were that Crittenden was to take it and pay so much, and the sum agreed upon was indicated by notes to fall due at the times agreed upon, and the property was delivered into the possession of Crittenden, Kimball would cease to be owner and Crittenden would become owner”-failed to go further and charge the jury the law applicable to that part of the evidence tending to show that the giving of the mortgage by Crittenden to secure the purchase money of the property in dispute, was a condition precedent to the vesting of the title in Crittenden, counsel for plaintiffs, in their argument, having con

Nicol & Davidson vs. Crittenden.

tended that no sale to Crittenden would protect him against the creditors of Kimball until said mortgage was given, and not until Crittenden had paid for the property, counsel for claimant having contended that the giving of the notes and delivery of the property consummated the sale.

3d. Because the court failed and omitted to charge the jury the principle of law contended for by plaintiffs' counsel, that if Kimball sold the property in dispute to Crittenden, the claimant, in fraud of Kimball's creditors, and Crittenden had notice of such fraud before he paid for the property, or before the notes given for the purchase money had passed beyond Kimball's and Crittenden's control, then Crittenden would not be a bona fide purchaser, and the property would be subject to Kimball's creditors.

4th. Because the court failed and omitted to charge the jury, that if at the time of the levy Crittenden had not paid for the furniture, and the notes given by him had not passed into the hands of innocent holders, the property was subject to the levy.

5th. Because the court, in making the following charge, failed and omitted to incorporate the principal of law that grounds for reasonable suspicion of fraudulent intent, are equivalent to a notice of such fraudulent intent. The charge as given, is as follows, to-wit: “If the testimony discloses to you, after a careful examination of every fact and circumstance developed by the proof, that the trade was made, and that it was done on Kimball's part, with the intention of delaying or defrauding his creditors, and that intention was known to Crittenden at the time, then the trade would be void as against the creditors of Kimball, and plaintiffs would have the right to make the property subject to their debt. If, on the contrary, it was a transaction in good faith, and not for the purpose of delaying or defrauding his creditors, or if he had that intention and it was unknown to Crittenden, it would be binding as between them and good against creditors.”

6th. Because the court erred in making the following charge, to-wit: "If it appears to you that upon a disputed point in

Nicol & Davidson vs. Crittenden,

the case there is evidence peculiarly within the power of one of the parties, and it was in his power to produce it, and it is not produced, the presumption of the law is that if it had been produced it would have been prejudicial to the party thus failing to produce it," in this that it was too general and failed so to explain the principle of law as to be intelligible to the jury. Thé evidence showed that Kimball had made to Crittenden a bill of sale for the property in dispute, or for part of it at least; that bill of sale was not produced on the trial, and no attempt was made to account for its non-production. Plaintiffs' counsel had contended that the failure to use that bill of sale in evidence was a strong circumstance against the validity of the pretended sale from Kimball to Crittenden, and counsel for claimant, in argument, had contended before the jury that Crittenden was not supposed to possess the bill of sale, but that Shoninger, who it was claimed held Crittenden's notes and the mortgage, was the proper person to hold the bill of sale.

7th. Because the court failed to charge the jury as was contended by plaintiffs' counsel in argument, that the sale to Crittenden on so long credit was a badge of fraud. So the sale to him of so valuable property, without payment or security for the purchase money. So also the sale of so large an amount of property to one unable to pay for it.

8th. Because the court failed to charge the jury the distinction between legal and moral fraud, or fraud in fact, counsel for plaintiffs having insisted on the distinction, and read authority in support of the distinction.

9th. Because the court charged the jury as stated in the 2d ground of this motion.

10th. Because the court charged the jury as follows: “It is said if there ever was a transaction of that kind, (that is, such as was referred to in the charge of the court above quoted in the 2d ground of this motion,) it was merely colorable, that it was a fraudulent transaction, and therefore void as against plaintiffs, on the ground that they were creditors of Kimball, That is a question of fact for you to determine--ascertain

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