Allen v. Wheeler

70 Mass. 123

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1855
• Status: Published

Opinion

Metcalf, J.

We do not perceive that the defendant has any legal ground of exception to the instructions that were given to the jury. It was not for the court to decide whether the evidence proved that the transactions between the plaintiff and Underwood were fraudulent as against Underwood’s creditors. That was a question for the jury, upon a consideration of all the evidence as to the nature of those transactions. Badges and ndications of fraud are not conclusive proof of fraud. They may be explained to the satisfaction of a jury. . And the judge instructed the jury that the facts relied on by the defendant, unless satisfactorily explained, were evidence of fraud to be considered by them. He also instructed them that if the replevied property was not transferred to the plaintiff by an absolute conveyance, then the transfer was void as against Underwood’s creditors, and the defendant was entitled to a verdict. Certainly the defendant should not complain of this last instruction.

The verdict for the plaintiff may have been against the weight of the evidence. If so, the defendant’s proper course was to move for a new trial on that ground. The' evidence, as stated in the bill of exceptions, certainly tended to sustain the defence set up by the defendant, but it did not warrant the court to instruct the jury that they were bound to find a verdict for him. The burden was upon him to prove fraud, and his counsel cannot maintain the position which they take, that this burden was shifted by proof of badges of fraud. Powers v. Russell, 13 Pick. 69. Nor can they maintain the position, that retaining possession of property after a sale of it is conclusive evidence of fraud. The law on this point is settled otherwise in this commonwealth Brooks v. Powers, 15 Mass. 244. Fletcher v. Willard, 14 Pick. 466

Exceptions overruled.