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Vol. II.)
BARKER v. BARKER'S ASSIGNEE.

No. 9. (1.) Because the deed to Abraham Barker was simulated and intended to defraud the creditors of Jacob Barker; and (2.) Because the failure to record the deed rendered it null and void ; and as the assignee was appointed before the deed was recorded he can, as the representative of the creditors, insist on the invalidity of the deed. These defences present the points that demand our attention,

First. Is the deed of September 30, 1857, void because executed in fraud of creditors ? There is not a word of evidence in the record to show that in 1857 Jacob Barker had a creditor in the world. On the other hand, all the facts in the case are consistent with the theory that being a man of large means and independent fortune, in no pecuniary strait, and wishing to put in the hands of a trustee trust property held by him for his wife, he made the deed in question. As all the parties were members of the same family it was not thought necessary to transact the business with the formality and precision usually employed when the transaction is between strangers. Had it really been the purpose of Jacob Barker to defraud his creditors, he would have been careful to see that the deed was executed and recorded in strict compliance with law. But it is not necessary to argue the question of fraudulent intent against creditors, because there is, as just stated, no proof that there were any creditors when the deed was executed and delivered.

Can those who were not creditors at that time, but who became so years afterwards, complain of the deed as fraudulent? It seems clear that generally they cannot. The doctrine established by the supreme court of the United States is, that a voluntary conveyance made by a person, not indebted at the time, in favor of his wife or children, cannot be impeached by subsequent creditors on the ground of its being voluntary. It must be shown to have been fraudulent or made with a view to future debts. Sexton v. Wheaton, 8 Wheat. 229; Hinde v. Longworth, 11 Wheat. 199. See also Bennett v. Bedford Bank, 11 Mass. 421.

There is nothing in the record which tends in the slightest degree to show that any of the creditors of Jacob Barker who are represented by the assignee were such at the date of the deed to Abraham Barker, nor that the purpose of that conveyance was to defraud any of his present creditors.

If the present creditors have any right to complain, it is not because the deed of 1857 was made in actual fraud of those to whom Jacob Barker was then indebted, but because it was not recorded, and because they have given him credit on the strength of his presumed ownership of the property conveyed thereby.

A deed not at first fraudulent may become so by being concealed, because by its concealment persons may be induced to give credit to the grantor. Sands v. Hildredth, 2 Johns. Chy. 35; Hilderbrun v. Brown, 17 B. Munroe, 779.

A deed concealed from the public, the grantor remaining in possession and acquiring credit on the strength of his supposed ownership of the property, is fraudulent. Worseley v. De Mattos, 1 Burr. 467; Hungerford v. Earle, 2 Vern. 261; Lewkner v. Freeman, 2 Freeman, 236; Constantine v. Twelves, 29 Ala. 607.

This brings up the second question, whether the failure to record the deed avoids it as to creditors.

Vol. II.)

BARKER v. BARKER'S ASSIGNEE.

(No. 9.

The Code of Louisiana gives no effect to acts of alienation as against creditors or bona fide purchasers unless they have been regularly registered. This is conceded; but counsel for complainant says that the creditors, as against whom an unrecorded deed is void, are those only who have obtained a judgment which created a lien or privilege on the land, and not general creditors. Whether the provision of the law is thus limited is the precise question now for solution.

The general rule is, that a creditor cannot proceed to set aside a conveyance of real estate, either really or constructively fraudulent, unless he has a lien thereon, or has reduced his claim to judgment, and the fraudulent conveyance is an obstacle to a sale in execution. Day v. Washburn, 23 How. 309; Jones v. Green, 1 Wall. 330 ; Coleman v. Crocker, 1 Ves. Jr. 160; Brinkerhoof v. Brown, 4 Johns. Chy. 671.

Conceding that a general creditor having no lien or judgment could not file a bill to set aside as void an unrecorded conveyance of real estate and to subject the property to the payment of his debt, does this rule apply to an assignee in bankruptcy ? :

In the case of Carr v. Hilton, 1 Curtis, 231, a bill in equity was sustained by an assignee to subject property conveyed by the bankrupt in fraud of his creditors to administration for their benefit. In many other cases this has been done.

It would appear that an adjudication of bankruptcy removes the necessity for a lien or judgment before a bill can be filed to subject the property fraudulently conveyed, or when the transfer is for other reason invalid. If the rule were otherwise, then no property conveyed by a bankrupt in fraud of his creditors, or by any void or invalid conveyance, unless the creditors had reduced their claims to judgment, could be subjected by the assignee in bankruptcy to the payment of debts. For after an adjudication of bankruptcy, no creditor whose debt is provable is allowed to prosecute to final judgment any suit at law or in equity therefor against the bankrupt, until the question of the bankrupt's discharge shall be determined. Bankrupt Act, sec. 21.

The question under consideration was decided by Woodruff, Circuit Judge (In re Leland et al., bankrupts, 10 Blatchford, 507), in the case of an unrecorded mortgage of chattels. The learned judge says: “It is claimed, because the mortgage is valid without being properly filed as against the bankrupts, it is, therefore, good as against their assignee in bankruptcy, and that no creditor but a judgment creditor can impeach or deny its validity.

"'The proceedings in bankruptcy arrest the ordinary proceedings of creditors to obtain judgments, and thereby to secure an appropriation of the debtor's property to their use, and the assignee in bankruptcy represents them. He is trustee for them, and whatever right they might assert, if they had obtained judgments, he may, for their benefit, assert, whether it be to set aside conveyances by the bankrupts which are fraudulent and void as against creditors, or which are otherwise as against them invalid."

The case stands thus : Jacob Barker, in 1857, was seised of the real estate in dispute. He attempted to convey it by a deed which his grantee failed to record, and he remained in possession. This failure to record the

Vol. II.)

COLEMAN v. CommonwEALTH.

(No. 9.

ist Sutitle still rention the rigits in their

Berty to admwhich auths, in their

deed made it inoperative as against subsequent purchasers and creditors. So far as their rights are involved, the title still remained in Jacob Barker until his bankruptcy in 1867. By the adjudication the rights of the creditors were vested in the assignee. The want of judgments in their favor is supplied by the adjudication of bankruptcy, which authorizes the assignee to file a bill to subject the property to administration, just as if he were a judgment or lien creditor. But the property has been delivered to him without suit, and its proceeds are in his hands for distribution. If it is rightfully thus, if under the circumstances of this case by his bill in equity he could have subjected the property, then it follows his rights are superior to the rights of the grantor of the unrecorded deed to the property, and that the bill of the latter to set up bis claim is without equity.

The bill must therefore be dismissed.

COURT OF APPEALS OF VIRGINIA.

(To appear in 26 Grattan.)

CONCERNING LUNACY AS RENDERING WITNESS INCOMPETENT. — PLEAD

ING AND PRACTICE.

COLEMAN v. COMMONWEALTH.

1. All persons examined as witnesses must be fully possessed of their understanding;

that is, such understanding as enables them to retain in memory the events of which they have been witnesses, and gives them a knowledge of right and wrong; and, therefore, idiots and lunatics, whilst under the influence of their malady, not possessing this

share of understanding, are excluded. 2. A witness is not excluded by this rule merely because he is a lunatic. That is not

enough per se to exclude him; but he must at the time of his examination be so under the influence of his malady as to be deprived of that “share of understanding " which is necessary to enable him to retain in memory the events of which he has been a witness, and gives him a knowledge of right and wrong. If at that time he has this share

of understanding he is competent. 3. Of the competency of the witness in such case the court is the judge, whilst the weight

of the testimony and the credit to be attached to it is to be left to the jury. 4. On a trial for forgery M. was introduced as a witness for the commonwealth, and

gave important testimony against the prisoner. He was examined and cross-examined for two days, and neither the counsel nor the court suspected he was deranged, though they thought he was drinking deeply. After the conviction and sentence of the prisoner he moved for a new trial, on the ground that M. was deranged when he gave his evidence ; and it was proved that he had been deranged a few days before the trial, and within a few days after it, and so continued. But the judge who tried the prisoner overruled the motion, and certified that at the time of M.'s examination he was a competent and proper witness, and not laboring under any mental disability whatever. The proofs not showing derangement at the time of his examination as a witness, he

was a competent witness; and the judgment affirmed. 5. If in an indictment for a forgery, the document alleged to have been forged is de

scribed in such manner as would sustain an indictment for stealing it, supposing it to be the subject of larceny, the indictment is sufficient.

Vol. II.]

COLEMAN V. COMMONWEALTH.

(No. 9.

6. In a prosecution for a felony, where the trial has been protracted, and much evidence

introduced, and it will consume much time in preparing a bill of exceptions, the court may properly refuse to delay the trial to permit the counsel to prepare the bill of ex

ceptions, and postpone its preparation until the case is submitted to the jury. 7. A public record must be a written memorial, intended to serve as evidence of some

thing written, said, or done, made by a public officer authorized by law to make it; but

that authority need not be derived from express statutory enactment. 8. Whenever a written record of the transactions of a public officer, in his office, is a con

venient and appropriate mode of discharging the duties of his office, it is not only his right but his duty to keep that written memorial, whether expressly required so to do or not; and when kept it becomes a public document, a public record, belonging to the

office and not the officer. 9. The warrant book of the sinking fund, kept by the second auditor in his office, of the

transactions of the commissioners of the sinking fund of the state, is a public record, and is of itself evidence of what it contains, to be considered with the other evidence

in the case. 10. Counsel in arguing the case before the jury refer to an instruction given by the

court, and represent it erroneously. It is not error in the court to interrupt him, and state to the jury the instruction correctly.

In March, 1874, William D. Coleman was indicted in the hustings court of the city of Richmond, for that on the 31st of December, 1873, he was secretary of the commissioners of the sinking fund, the said sinking fund having been authorized, &c.; “ having acquired possession in some manner and by some means, to the jury unknown, of a certain record, the same then and there being and remaining as a public record of the Commonwealth of Virginia, in the office of the second auditor thereof in the capital of said commonwealth, at said city, to wit, the warrant book of the said sinking fund; the said public record, to wit, warrant book of the said sinking fund, then containing an entry in writing in the words, figures, ciphers, and letters following, that is to say: 1873, Nov. 11. By warrant No. 7, to Planters' Nat'l Bank, for purchase of $18,100 of Virginia consolidated bonds, $8,190.25,' feloniously did forge the said public record, by then and there feloniously, falsely, and corruptly erasing the figure 1 from the figures and ciphers $18,100, before written in the said public record, which figures, with the sign $ next preceding them, did, before such forgery and erasure, import and signify eighteen thousand one hundred dollars; but by reason and means of such forgery and erasure did become, import, and signify eight thousand one hundred dollars, which said false, forged, and altered entry in writing in the public record aforesaid is in the words, figures, ciphers, and letters following, that is to say : 1873, Nov. 11. By warrant No. 7, to Planters' Nat'l Bank, for purchase of $8,100 of Virginia consolidated bonds, $8,190.25 ;' with intent to defraud, against the peace and dignity of the Commonwealth of Virginia.”

There was a second count in more general terms.

The prisoner demurred to the indictment; but the demurrer was overruled by the court. He then moved the court to quash the indictment for errors apparent upon its face, which motion the court also overruled ; and he then pleaded “not guilty.”

On the trial of the cause, after all the evidence had been introduced, including the book in which the forgery was charged to have been made, and the vouchers on which the entries in it were made, the prisoner by his counsel asked the court to give to the jury the following instructions :

1st. The jury are instructed that forgery of a public record can only

. [No. 9.

Vol. II.)

COLEMAN v. COMMONWEALTH.

consist in forging those things which the law authorizes or requires to be recorded.

2d. The law does not require the second auditor of the Commonwealth of Virginia to keep a record of warrants issued to the treasurer of the state for payments of money on account of the sinking fund, provided for by the act of the General Assembly of Virginia of March 30, 1871.

3d. In order to convict the prisoner of the forgery with which he stands charged, the jury must believe from the evidence that he committed the act of forgery as charged with intent to defraud.

4th. The jury are instructed that they must disregard all the evidence of the witnesses for the commonwealth, introduced to prove the number of bonds which ought to belong to the sinking fund, so far as such testimony was derived from the warrant book of the sinking fund kept by the second auditor, and alleged to have been forged by the prisoner, unless they believe that the said witnesses could speak of the number of bonds from their own memory, after having it refreshed by reference to said book.

5th. The jury are further instructed that they must disregard all the testimony of the witnesses for the commonwealth, introduced to prove the number of bonds which ought to belong to the sinking fund, so far as such testimony was derived from the orders from the commissioners of the sinking fund, signed by the prisoner as secretary, and directing the second auditor to issue his warrants, which orders were offered in evidence by the attorney for the commonwealth, unless they believe further that the said witnesses could speak of the number of bonds from their own memory, after having it refreshed by reference to said orders.

6th. The law does not authorize the second auditor of the commonwealth to keep a record of warrants issued to the treasurer for payments of money on account of the sinking fund, provided for by the Act of March 30, 1871.

7th. The law does not authorize the second auditor of the commonwealth to issue warrants to the treasurer for the payment of money on account of the sinking fund, provided for by the Act of March 30, 1871.

8th. In issuing his warrant to the treasurer for the payment of money on account of the sinking fund, provided for by the Act of March 30, 1871, the law only authorizes and requires the second auditor to record the fact of issuing such warrant, the amount for which it is issued, the date thereof, and the particular head of general revenue or expenditure on account of which the money is paid; and other statements in the record warrant book of the second auditor, kept by him to record the issuing of warrants on account of the sinking fund, provided for by the Act of March 30, 1871, are no parts of the public record.

9th. The law neither authorizes nor requires the second auditor to record in his warrant book, produced to the jury, the number of Virginia consolidated bonds, for the purchase of which warrant No. 7 was issued; therefore it could not be forgery for the prisoner to alter the figures 18,100 therein.

10th. The jury are instructed that they must exclude from their consideration the record book of the sinking fund produced to them, so far as the commonwealth's attorney would seek to show from said book the number

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