Crane v. Waldron

94 N.W. 593, 133 Mich. 73, 1903 Mich. LEXIS 461

• Court: Michigan Supreme Court
• Decided: April 28, 1903
• Docket: Docket No. 43
• Status: Published

Opinions

Hooker, C. J.

On July 12, 1900, complainant obtained: a judgment against John Waldron in a justice’s court in Shiawassee county for about $170. On July 21, 1900, a transcript was filed, and an execution was issued by the-circuit court to the sheriff of Eaton county, and on July 23, 1900, it was levied upon some village lots in that-county, the title to which was formerly in John Waldron. On June 26, 1900, John Waldron, who then lived in Shiawassee county, deeded the same to his daughter, Mary Ann Waldron, who for several years had been working-out in the capacity of domestic. On December 10, 1900,. this bill was filed in aid of the execution, to which the defendants answered separately, denying that the transfer was fraudulent, and asserting that it was in payment of $250, of which $200 had been earned by Mary, and loaned to or expended for the benefit of John, Waldron, previous-to the transfer. Upon the hearing, complainant made proof of the judgment, the issue of execution, the levy, and the deed. The execution itself was npt produced, but was shown to be lost, and secondary evidence was-admitted. The defendants offered no testimony. A decree-was rendered in behalf of complainant, and the defendants have appealed.

Counsel for defendants attack the constitutionality of Act No. 99, Pub. Acts 1897, being 3 Comp. Laws, § 10203, which provides that, “in all suits in aid of execution, the complainant shall make a prima facie case by introducing in evidence the judgment against the principal defendant, the execution with the levy or levies thereon indorsed, and proof of the conveyance complained of.” They also-question the sufficiency of complainant’s evidence. They say that:

“Bills in aid of execution only lie where the conveyance was made with the intent to hinder, delay, or defraud creditors. Section 9533, 3 Comp. Laws. If the grantee is a purchaser for a valuable consideration, then it must further appear that he had notice of his grantor’s fraudulent intent.' Section 9537, Id. To establish a prima facie case, therefore, it must appear: First, that the conveyance was made with the intent to defraud creditors; second, that the purchaser gave no consideration, or else took with notice of his grantor’s fraudulent intent. The statute of 1897 attempts to make the judgment, execution, or deed, without the aid of other proof, evidence of fraudulent intent on the part of the grantor, and evidence of notice of such fraudulent intent on the part of the grantee.”

Their claim is that ‘ ‘ due process of law ” requires that some evidence be given of a fraudulent intent by Waldron, shared by his daughter.

The power of the legislature to prescribe rules of evidence is undoubted. When one is in debt, and deeds all of his property subject to execution to another, who has no visible property, it cannot be said that there is no evidence tending to show fraud. It was within the legislative power to say that these facts shall be prima facie evidence of a fraudulent intent, making it necessary for the persons charged with fraud to give some testimony to the contrary. Cooley, Const. Lim. (6th Ed.) 450; Gruner v. Brooks, 126 Mich. 465 (85 N. W. 1085); Molitor v. Robinson, 40 Mich. 200; Buhl Iron Works v. Teuton, 67 Mich. 623 (35 N. W. 804); Hatch v. Fowler, 28 Mich. 205; Webster v. Bailey, 40 Mich. 641; Cooper v. Brock, 41 Mich. 488 (2 N. W. 660); Kipp v. Lamoreaux, 81 Mich. 299 (45 N. W. 1002); U. S. v. Lee Huen, 118 Fed. 442.

The title to the act is “An act to provide for the change of rules of evidence in cases where bills in aid of execution are filed.” This is sufficient, unless we are to say that the title must be an index of the provisions of the act, which is not required.

It is contended that the failure to produce the execution at the trial was»an omission which excludes the application of the statute. We are of the opinion that secondary evidence is admissible, under this statute, in accordance with the general rule.

' A number of technical reasons are urged in support of the proposition that the contents of the execution were not proved. The testimony regarding the execution was not challenged, except under the very general objection that the proof was incompetent and immaterial. We discover nothing that should have indicated to the court that objection was made that it was not shown to be properly directed, or properly tested, or issued in the name of the people, etc., or that it was not returnable reasonably, or did not properly recite the judgment or name the parties. Under the circumstances, the statement by Cooper that he received an execution in the case stated from Shiawassee county, the admission of the validity of the judgment upon which it was issued, the copy of the transcript of judgment, and the notice duly filed, are sufficient to convince the mind, in the absence not only of evidence, but of any claim, to the contrary.

The decree is affirmed, with costs.

Carpenter and Montgomery, JJ., concurred with Hooker, C. J.