Woodruff, J.
I concur fully in the proposition that after the execution and delivery of an assignment for the benefit of creditors, and the entry of the trustees upon the performance of the trust, by taking possession of the assigned property, the assignor cannot, by his declarations or admissions, out of court, invalidate the assignment or furnish evidence of his own or the trustees’ fraudulent intent in making or receiving it, for the purpose of defeating the claim of the trustees to hold and administer the property according to the trust.
Where such is the purpose and proposed effect of the evidence, it will not do to say that testimony to the assignor’s admissions is competent evidence as against him, and if his intent was fraudulent, the assignees, however free from fraud themselves, are not
bona fide
purchasers, but are affected by the fraudulent intent of the assignor.
This proposition, if conceded, does not make such declaration proof of the assignor’s intent as against the assignees. If proof that the assignor intended to defraud -will alone defeat the assignees’ title, such intent must, in a contest with them, be proved by evidence which is competent as
to them,
Or their title must prevail.
In such a contest, proof which establishes the fraudulent intent by evidence good as against the assignor only, does not contribute in any degree to defeat their title. On such evidence the assignees may legally say, as to us, the allegation is wholly unproved.
In the present case it is urged by the appellant, as assignee of William T. Cuyler (prosecuting to recover for property claimed to have been wrongfully taken on execution), that the conversations of the assignor, out of court, were erroneously received to establish that the assignment was made with intent to defraud the creditors of the assignor.
Without denying the rule above stated, the admissibility of the evidence upon this trial is insisted upon on other and distinct grounds, alleged to be in no conflict therewith, or, as to some of the declarations, they were of such wholly immaterial matters that they could not possibly have affected- the verdict.
Among these grounds is this, that other evidence showed that the assignor and assignees were combined in a conspiracy to defraud the creditors of William T. Cuyler, and therefore the acts and declarations of either conspirator, while carrying the common intent into execution, and in furtherance thereof, are competent evidence to affect all the co-conspirators.
This rule is not questioned; its application, however, to this ease is denied, and it is insisted that the rule itself assumes that the fact of conspiracy for an unlawful purpose is conceded or has been proved.
It is not and cannot be successfully claimed that mere proof that assignor and assignee have concurred in an assignment providing for the payment of debts, establishes a conspiracy within the rule. Delivering and accepting such an assignment establishes a common intent, but not a common intent to defraud. If mere proof of concurrence in the execution and delivery of the assignment established a common intent within the principle making the acts and declarations of 'the conspirators, while carrying their common design into execution, evidence against each other, then the rule first above
stated is made a nullity. ¡No sooner is an assignment made than the assignor may, by his acts or declarations out of court, defeat it, 'if he be dishonest enough to collude with any creditor, or to resent any dissatisfaction with the trustees, and defeat it by such means.
To make such admissions or declarations competent evidence, it must stand as a fact in the cause, admitted or proved, that the assignor and assignees were in a conspiracy to defraud the creditors. If that fact exist, then the acts and declarations of either, made in execution of the common purpose, and in aid of its fulfillment, are competent against either of them. The principle of its admissibility
assumes that fact. •
It necessarily follows that those declarations or admissions cannot be received to prove the fact itself. This is quite plain. A species or form of evidence which is in its nature inadmissible, unless some prior or other fact is proved, cannot be received to establish the fact, proof of which is an indispensable condition of its own admissibility.
I speak now without any discussion of the order of proof or of how conclusive the proof of conspiracy for an unlawful purpose must be at the time when evidence of the declara-, tions of conspirators is offered. I mean distinctly to say, that these acts and declarations are not, in any stage of the trial, to be received and weighed as evidence of the unlawful combination itself; to allow them to be so received and weighed is to hold them admissible, although the very condition upon which their admissibility depends is not satisfied.
There, I think, was the plain error into which Mr. Justice Cowen fell, when he wrote his opinion in
Waterbury
v.
Sturtevant
(18 Wend., 353). In that case, it was sought to set aside a conveyance by Jera Waterbury to ¡Nathaniel Water bury as fraudulent. Judge Cowen was of opinion that a case of fraudulent combination had been shown, and that therefore the admission of the assignor (Jera) more than six months after such conveyance, when
“
on the jail limits,” under the plaintiffs’ execution, to the effect that the conveyance was
made to prevent the creditors collecting the judgment, was admissible to affect his father, the grantee; and, to use his language, “ Jera’s direct admission of the fraud may properly be added to the evidence as between Sturtevant (the plaintiff) and the father, if the case be not sufficiently clear without it.” This declaration of the right to use the declaration of the grantor to establish the illegal conspiracy, without which there was no fraud affecting the father, was, I think, a misapprehension of the rule, and the Court of Errors, in refusing to concur in Judge Oowen’s opinion for affirmance, reversed the judgment. The reversal was upon the ground that the illegal combination was not established, which was in effect a holding that the declaration of the grantor was
not “
to be added to the evidence as between the plaintiff and the grantee.”
In case of conspiracy, where the combination is proved, the acts and declarations of the conspirators are not received as evidence of that fact, but to show what was done, the means employed, the particular design in respect to the parties to be affected or wronged, and generally those details which, assuming the combination and the illegal pm’pose, unfold its extent, scope and influence either upon the public or the individuals who ‘suffer from the wrong, or show the
execution
of the illegal design. But when the issue is simply and only, was there a conspiracy to defraud, these declarations do not become evidence to establish it.
So far then, as the admission of the evidence in this case, of declarations, subsequent to the assignment, is sought to be sustained as evidence of the common fraud, on the ground of conspiracy, the argument wholly fails. A conspiracy cannot be proved against three, by evidence that one admitted it, nor against assignees by proof that the assignor admitted it; it is a fact that must be proved by evidence, the competency of which does not depend upon an assumption that it exists.
The judge, on the trial of this action, instructed the jury that it was proper for them to consider, upon the question of
actual fraud, the various conversations which had been given in evidence.
If the declarations in question are not admissible on any' ground except as declarations of the assignor after the assignment and delivery of possession of the property, or as declarations of a co-conspirator, then it was erroneous to receive them or submit them to a jury as proof of the fraud. The judge charged, that both assignor and assignees must have concurred in the fraudulent intent in order to render the assignment void; a proposition probably more favorable to the plaintiff than an accurate declaration of the rule would be; but this shows how the reception and submission of these declarations to the jury, as evidence of fraud, operated to the plaintiff’s prejudice, if not admissible.
The declarations objected to consisted of a part of three conversations; one with Anson D. Smith on Sunday, the 30th of August, 1851. At that time, the assignment had been prepared and completed the day before, but had not been delivered to the assignees. "William T. Cuyler had the entire possession and control of the property, and was at full liberty to allow the assignment to have effect or not. So far as this conversation was between the plaintiff and Smith and the assignor, it is not claimed to have been incompetent; it was the plaintiff’s own conversation, or in his presence, so as to affect him. How all that the assignor said, out of the presence of the assignee, was in reply to Smith’s observation that he had heard that he (Cuyler) had made an assignment, viz: “He said he did not know how it should get out, because .it was not known; but that he had made an assignment, and George (the plaintiff) would tell me all about it when we got to the house”—a very natural expression of surprise that rumor of his assignment had got abroad before it was in fact delivered, though executed; a frank declaration, nevertheless, of the truth. By no distortion that I can imagine can this be construed evidence of fraud; and although the judge, in submitting the whole conversation to the jury, did not except this from the conversation which followed between the
assignor, assignee and Smith, I should hesitate very much in saying that those statements could by any possibility have been regarded, either by the court or jury, as any evidence that the assignment thus spoken of was fraudulent. They tend rather to show the assignor’s frank sincerity, and that is all. If the conversation which followed tended to prove fraud, the plaintiff was a party to it; the very subject of conversation was in the possession of the assignor and its transfer to the plaintiff, the matter
before their
minds. Whatever in that tended to show fraud, tended
to
show fraud to which both were parties, or at least of which both were cognizant.
Another portion of the testimony which the appellant insists was inadmissible, upon the grounds above considered, is the conversation between the assignor and Anthony M. Wooster, two months after the assignment. To understand the purport of this conversation, and its relations to the controversy, it should be stated, that a prominent claim by the defendants, in hostility to the assignment, was, that the assignor has not given up the possession or the control of the assigned property; that, although the form of transfer had been completed, he still managed the estate with intent that the assignment should serve the purpose of constraining creditors to compromise them claims
or
accept property in satisfaction thereof, and that the assignee, his son, was a mere instrument in his hands, obedient to his will and submitting to his control, and much testimony had been given, which the defendants relied upon as establishing this.
Now Anthony W. Wooster was a creditor; he had a conversation, about two months after the assignment, with the assignor and assignee, at the beginning of which the assignor only was present. It was while the great bulk of the property was on hand. The witness stated that he had a conversation with the assignor, and the plaintiff’s counsel objected to proof of that conversation. Neither the precise ground upon which it might be deemed admissible, nor the precise ground of objection, were stated by counsel, but the witness was permitted to continue his narrative.
It follows that if, on. any ground, it can be said to be competent on the question of fraud, by showing’ the assignor’s continued control and dealing with the property, with the knowledge and assent of the assignee, it cannot be said to be improperly admitted.
What, then, was the conversation ?
££ Mr. Cuyler asked me if I had seen George (the plaintiff). I said I had; he said I had better go back; George wants to turn out property on your debt; I said I understood property had been levied on; he said that no property had been levied upon, except a little around the
distillery;
I said if I could hold it I should be glad; he spoke about turning out rye, barley in stack, and some calves; I said I would be glad to have them.”
If this had ended the matter, I should have felt constrained to say, entertaining the views I have above expressed, .that it was wholly incompetent, and ought not to have been received to affect the plaintiff.
But if the material fact and only material fact involved in it, viz., that he, the assignor, had been proposing that property should be turned out to the witness was at once communicated to the plaintiff, and the negotiation therefor was continued and consummated ; then the objection disappears, because the plaintiff adopted it or acquiesced in' it. In that view, it had a competent bearing on the question above stated, how far the assignor continued in the management and appropriation of the property, his son acquiescing and aiding therein.
The witness add
s:
When we got into the house the Colonel (the assignor) said to George (the plaintiff), he had brought me back to take the property; he said
he
wanted to let me have rye and barley, and George said, had’nt you better take the calves ? He wanted' me to take potatoes and hay.” The conversation continued, property was examined and a bill of sale was made out; on discussion about the price named, the assignor declaring that “ he did not expect me to keep” the property; that
they
could make more out of it, and would pay our debts.”
Now it is true that the very words of the conversation out of doors were not recited to the plaintiff, hut what was said did communicate the substance and only point of the conversation to him, viz.: That the assignor had been negotiating with the witness for the turning out of property to him on his debt, and the plaintiff, upon that, acquiesces and co-operates in effecting it, the assignor still being the principal party urging and settling the terms of the transaction.
I cannot regard the admission of those preliminary propo sitions by the assignor, adopted and acted upon by the assignee, as inadmissible.
It does not appear by the case what precise view was taken of this at the trial, but it does not appear that it was received or treated as in the nature of an admission or declaration of the assignor that the assignment was fraudulent. The judge told the jury that they might, on the question of fraud consider this turning out of rye, barley, cows, calves, &c., as testified by Anthony H. Wooster, without any expectation that Wooster would keep it. So far as it tended to show the continued control of the assignor over the property, or a design to treat the assignment and transfer to Wooster as a mere cover until the assignor should pay the debt and take back the property, it was clearly admissible. It was not at all conclusive, and was not so treated, but it formed a part of the history of the dealings of the assignor and assignee with the property, which it was competent for the jury to consider.
The only other conversation of the assignor, which is claimed by the appellants to have been improperly received, was had with William B. Wooster, one of the assignees, and one of the original plaintiffs in this action. The conversation was about six weeks after the delivery of the assignment.
It unquestionably tended in some degree to show that the assignor was active in the management of the property, was concealing some of the property even from one of the assignees, was desirous of retaining some from the reach of executors, that it might furnish means of contending with creditors and otherwise, was well adapted to create the
impression of bad faith on the part of the assignor, and in some slight degree on the part of his son. Indeed it is conceded by the counsel for both parties (in substance if not in form) that this testimony tended to show fraud.
If William B. Wooster is to be regarded as a third person, not involved in this controversy, and those declarations are to be judged of as if made to a stranger, and therefore offered nakedly as admissions or declarations of the assignor, then, for the reasons that I have given at some length, I deem them wholly, inadmissible, and the judgment should be reversed for the error in receiving them and submitting them to the jury as bearing upon the question of fraud in the assignment to defeat plaintiff’s title.
It appears by the statement of the case appended to the appeal book, that he was removed from his office of assigneeon the 20th of May, 1858, after this conversation and after this action was brought, but before the trial. Although the order is not printed, the counsel for both parties seem to concede his removal by their briefs; and on the trial, and in connection with this testimony, he was called a removed trustee.
A conversation between him and the assignor cannot be given in evidence as involving either an express or implied admission of the truth thereof by a party to the action. In that aspect, the conversation would stand on the same ground as his own declarations, which were, in fact, rejected, when offered on the trial.
Was the conversation admissible as involving his* (Wooster’s) assent to what the assignor said, on the ground that he was then acting as assignee and held the legal title to the property, of which he had, before the trial, been divested ? The action relates to personal property only, of which he then had the possession jointly with the plaintiff, if they ever had any actual possession, and upon that naked question, 1 think the proof sufficiently shows that they took possession.
But, 1st. The conversation imports no admission by Wooster, of any fraud in the assignment, but the contrary. It consisted, on his part, of inquiries and, perhaps, complaint
that he was not permitted due control of the administration .of the property and an intimation of an intention to resign, to avoid the censure of creditors, for not proceeding more rapidly in the execution of the trust.
.- 2d. If it could be construed into an implied admission, or an acceptance of the assignor’s statements, and whatever indication of fraud was imputed thereby, the question becomes somewhat complicated.
It is well settled in this State, that the admissions or decía rations of a former owner of personal property are not admissible to affect the title of a purchaser from him.
And, for the purposes of this case, it is not necessary to hold that, where a transfer is sought to be impeached, on the ground that it was fraudulent, the admissions of the assignor, while continuing in the possession of the property, not having consummated it by an actual surrender of the property to the transferee, are incompetent as evidence of the fraud.
(Adams
v. Davidson, 10 N. Y., 309, and eases there cited, and in Notes to Phil. Ev., p. 602.) Whatever may be thought of the correctness of the rule stated in
Adams
v. Davidson, it is not necessary to the decision of this case that it be disregarded.
Apart from the claim strenuously insisted upon by the defendants, on the trial and here, that, in truth, Wooster never had the actual possession of the property, I do not think the cases cited reach the present question; and it is quite clear that the testimony was not received upon any such ground, but simply as the declarations of William T. Cuyler, the assignor, and, as his declarations, I have already said they were not admissible.
So far as the plaintiff holds, he holds not in a just sense under Wooster, but under the assignment. The removal of Wooster leaves him sole assignee; and there is no pretence that the change wrought by such removal was fraudulent, and the effort of the defence is not to impeach that, by showing that before it was consummated, Wooster made admissions invalidating it.
To illustrate: Suppose that Wooster had, even in an application to the court to be perniitted to resign, stated in terms, that William T. Cuyler’s assignment, by which he was made trustee, was made for the purpose of defrauding his. creditors, would that, after his resignation, have been evidence against his co-assignee, who maintained the -assignment and insisted upon its honesty
%
Or, suppose he had so stated in an answer to a petition for his removal, would such statement have been evidence? I think not. And, if not, then any inferences derivable from declarations of the assignor in his presence are not to be permitted.
Both he and the assignor are competent witnesses, by whom to establish the fraud, and their testimony, under oath, and not their declarations or admissions, should be resorted to, to establish the fraud.
I have considered the only other ground upon which the counsel for the appellant urged a reversal of the judgment, viz., the charge of the judge, wherein he instructed the jury that they might take into consideration various facts which appear in evidence, to wit:
The delivery of $4,800 by the assignor to his wife, two days before the assignment; the provision in the assignment for the payment to his son, of $8,000, for his services; the clandestine removal and secretion of property immediately after the sheriff had visited the premises; and the falsehood and deception attempted through one of the witnesses, De Bow, manifestly intended to defeat or prevent a levy, and some other dispositions of property, having that apparent object; and, finally, the transfer of the distillery to a late servant of the assignor.
These were transactions which the court charged might be considered, but he charged, also, that the explanations thereof must also be considered.
If the jury believed the explanations, and, therefore, that the payment to the assignor’s wife was the payment of a just debt, and that the other transaction were with a view to the maintenance of a just title to the assigned property,
they would attach no importance to the circumstances mentioned But the argument of the appellant, to a large degree, assumes, that the jury were bound to believe the explanations, and, therefore, these circumstances were not to be considered at all.
It is undoubtedly true that an assignment, honestly made for a liwful purpose, cannot be defeated by proof that the assignees abused their trust, misappropriated the property, or acted however dishonestly in its disposal, or that they took unwise or even apparently dishonest means to preserve the property from litigation or levy by a creditor who, in such case, has no right to seize it.
But, when the question is whether the assignment was made with single desire to appropriate the property to the payment of creditors, the immediate conduct of the assignees on taking or professing to take possession, their acts when they find that the good faith of the assignment is questioned, and especially when there is some evidence that they are acting under the advice, if not control of the assignor himself and under a suspicion not entirely without evidence, that the purpose of the assignment was made in order to prepare the w&y for compromises, and constrain creditors to take property at prices to be fixed, in satisfaction of debts, in lieu of money, I think these, and all like circumstances, should be peí ¡nitted to go to the jury, with the explanations thereof, for th'fir consideration.
Bu', on the ground above stated, I conclude that the judgment must be reversed and a new trial ordered.