McGahan v. Crawford

25 S.E. 123, 47 S.C. 566, 1896 S.C. LEXIS 114

Opinions

The opinion of the Court was delivered by

Mr. Justice Jones.

In January, 1885, the defendants, D. R. & W. R. Crawford, being in debt to the plaintiffs and others, transferred and conveyed to their sister and codefendant, Miss D. M. Crawford, certain real and personal property. On the 20th day of December, 1890, plaintiffs commenced an action to set aside these transfers and conveyances, on the ground, first, of actual fraud, and, second, as in violation of the assignment act of this State. To the complaint, as a part thereof, was attached a list of the property alleged to have been conveyed and assigned. The defendants answered, denying all allegations of fraud, and alleging that the conveyances and transfers were bona fide and for value.

The cause was heard by Judge Fraser, at February term, . 1892, and he dismissed the complaint, holding that there was not sufficient evidence of actual fraud; and there being no allegation in the complaint that Miss D. M. Crawford was' a creditor of D. R. & W. R. Crawford, that no case was made out under the assignment act. On appeal, this Court remanded the case for a new trial, with leave to the plaintiffs to apply for amendments to the complaint, if so advised. 39 S. C., 64. The complaint was then amended, and the cause was referred to a special referee, to take the testimony and report the same to the Court. Upon the testimony reported by the referee, the cause was heard by Judge Earle, September term, 1895. Judge Earle’s decree, together with the exceptions thereto, as well as the complaint, exhibit, and answers, will be set out in the report of this case. This decree, while not adjudging the question as to actual fraud, holds that the conveyances and transfers were, in effect, one transaction, and intended to be an evasion of the assignment law of this State, transferring the whole of their property to the said D. M. Crawford, giving her a preference over other creditors, thus, in legal effect, constituting an assignment with preference, and, therefore, void.

1 The first and second exceptions relate to the introduction in evidence of the record and books of the office of the clerk of court to show the convej^ances and transfers of property referred to in the complaint. When offered before the referee, the following entry was made in the referee’s notes of testimony: “No objections are made to the introduction of the record of these transfers or assignments upon the ground that the originals or the copies of these records are not produced, but the defendant reserves the right to object upon any other "ground.” Other references followed this, but no further notice of objection was given. At the hearing before Judge Earle, for the first time the objection is raised that these records could not be introduced in evidence, because ten days notice of intention to offer certified copies of same had not been given. Had this objection been made known on the 27th August, 1895, when the books were offered in evidence, t-he ten days notice could have been given, and the records introduced again on the 7th September, when the reference closed. It is well settled that objections to testimony must be made when the testimony is offered. Under the circumstances, we think the Circuit Judge correctly held that the ten days notice had been waived by the defendants. These exceptions are, therefore, overruled.

2 The third exception alleges error “in admitting the testimony of N. B. Dial as to what the defendant, Miss D. M. Crawford, testified to before D- W. Simpkins, when she was examined under the de bene esse act as plaintiff’s witness.” The Circuit Judge ruled that, being a party to the suit, any declaration or admission made by her against her interest, either in or out of Court, can be established by anj'one who was present and heard the testimony. The witness, N. B. Dial, on his examination in chief, spoke of statements made by Miss Crawford, in her testimony taken by D. W. Simpkins, and, on cross-examination by appellant’s counsel, spoke also of her statements made on a former trial of this case. It will be observed that the exception in no way questions the admissibility of Miss Crawford’s declarations made in the former trial, hence our inquiry is limited to so much of his Honor’s ruling as relates to the testimony of Miss Crawford taken before D- W. Simpkins. The voluntary declarations or admissions of a party to a civil suit, against interest, are clearly receivable in evidence. Whether such testimony was voluntary, must, in the first instance, necessarily be addressed to the judgment and discretion of the trial Judge, and the party challenging his ruling thereon as error has the burden of showing error. The sole fact relied on by appellant to show that the admissions of Miss Crawford were not voluntary, is the fact that her statements were made before D- W. Simpkins, who, it is alleged, took her testimony under the statute allowing testimony de bene esse to be taken. Sec. 391 of the Code of 1870 provides, that a party to an action may be examined as a witness, at the instance of the adverse party, and, for that purpose, may be compelled, in the same manner and subject to the same rules of examination as any other witness, to testify either at the trial, or conditionally,' or upon commission. The act of 1883, 18 Stat., 373, sec. 2345 Rev. Stat. 1893, allows depositions de bene esse in certain cases to be taken by a Circuit Judge, cleric of the court, trial justice, or notary public, and provides that any person may be compelled to appear and depose in the same manner as witnesses may be compelled to appear and testify in Court. The master is another officer allowed by statute to take such testimony in certain cases. But it no where appears in the record before us, and we must assume it did not appear before the Circuit Court, that R. W. Simplcing is one of the officers allowed by law to take testimony de bene esse. Mr. Simpkins testified that he took Miss Crawford’s testimony as a special referee, but it no where appears by what authority he claimed to act as special referee, unless it be in the testimony of Mr. Dial, who said: “Mr. Simpkins took the testimony of Miss D. M. Crawford de bene esse, by consent of parties.'1'1 The italics are ours. There is no room for our presuming that Mr. Simpkins was an officer qualified to take such testimony. It is incumbent on the appellant to show this fact. We conclude, therefore, that the statements of Miss Crawford before Mr. Simpkins were entirely voluntary, were taken “by consent of parties,” and she was a party, and that she was under no legal constraint or compulsion when she made her statements. There is not the slightest evidence, nor is it even contended, that she was imposed upon or under duress at the time of her statements. This fact destroys the foundation for the argument of defendant’s counsel, forcefully presented to the Court, that the testimony of a party to a suit, taken de bene esse under the statutes of this'State regulating the same, where the witness or party may be compelled to appear and testify, and punished for failure or refusal to do so, would not be such free and voluntary admissions as would make it competent for any one who heard the evidence to testify to it in a subsequent trial, as admissions against interest. But even if the testimony of Miss Crawford had been taken regularly by a proper officer, under the statute allowing the taking of de bene esse testimony, and compelling the same in case of refusal, we are not prepared to say that the Circuit Court erred in allowing evidence of such testimony as admissions against interest. It is true, in the case of State v. Senn, 32 S. C., 403, which was a case involving the admissibility of statements made by parties at a coroner’s inquest, as witnesses, who were afterwards indicted for the crime. Mr. Justice Mclver, in an opinion concurred in by a majority of the Court, said: “It is essential to the admissibility of admissions or confessions of a party charged with crime, that they should be free and voluntary. * * * It seems to me, therefore, that the only way to preserve, in its integrity, the well settled rule that a person cannot be required to furnish testimony against himself, is to hold, that if examined before a coroner’s jury or a committing magistrate, the testimony which he is then required to give cannot be used against him in a prosecution subsequently brought against him. As there is no decisive authority in this State upon this point, so far as I am informed, and as the authorities elsewhere are conflicting, we are at liberty to adopt such rule as we think most in conformity with settled principles, and, as it seems to me that the rule above indicated is of that character, I think it should be adopted.” This rule, if applied to a civil case, would exclude evidence of the admissions of a party, if the admissions were made under circumstances of legal necessity or compulsion, as would • be the case of an examination under the statute allowing testimony to be taken de bene esse, with authority to compel the witness to attend and testify, and to punish refusal to do so. But it may well be questioned if such a rule should be applied in a civil case. Mr. Greenleaf, in his book on Bvidence, vol. 1', § 193, 7th ed., says: “In regard to admissions made under circumstances of constraint, a distinction is taken between civil and criminal cases, and it has been considered that on the trial of civil actions, admissions are receivable in evidence, provided the compulsion upon which they are given is legal, and the party was not imposed upon or under duress.” The third exception is overruled.

The fourth exception becomes immaterial under the conclusion reached as to the first and second exceptions.

3 The fifth exception alleges error in holding that D. R. Crawford and W. R. Crawford were insolvent at the time they made certain conveyances to Miss D. M. Crawford. The conveyances were made 6th January, 1885. It appears that on February. 13, 1885, judgments to the amount of over $6,000 were entered against D. R. & W. R. Crawford. Suits were probably begun or threatened at the time of the conveyances; later other judgments were entered for over- $400. All these judgments, nineteen in number, were based on claims past due at the time of the conve}mnces. The stock of merchandise of these merchants had dwindled to a remnant of $100 in value. In their answer they admitted the conveyances and assignments of real and personal property to their sister, Miss Crawford, but claimed that the consideration was in part the payment by her of mortgages on the land, amounting to almost, if not entirely, the value thereof, and in part the release of a portion of her debt against them. The theory of the defense was a large indebtedness to Miss Crawford sufficient to require for its payment the property which they conveyed and transferred to her. The proof of insolvency was clear and convincing, and there was not the slightest attempt to make a counter-showing.

4 The sixth and eighth exceptions may be considered together. They allege error in holding that the said conveyances covered all the property of D. R. & W. R. Crawford, were in effect one transaction, and intended to be an evasion of the assignment law of this State, and to transfer the whole of their property to one creditor, giving her undue and illegal preference over other creditors. After a careful study of the testimony in the light of the pleadings, we are satisfied that Messrs. Crawford conveyed all, or practically all, of their property to their sister, Miss Crawford, knowing themselves to be insolvent, with the intention to give her a preference over other creditors, and although there were several conveyances of specific property, they were all made about the same time, and constitute an assignment with preference, in violation of the assignment laws of this State. We concur with the Circuit Court that said conveyances are void. Wilks v. Walker, 22 S. C., 108.

The seventh and twelfth exceptions have been practically disposed of in the consideration of exceptions one and two.

5 The evidence showing that the real and personal property was conveyed to Miss D. M. Crawford, in the absence of evidence to the contrary, it will be presumed that she has been in possession of the property and using it as her own since the date of the conveyances, January 6,1885. It appears in the evidence of Mr. Feather-stone, a witness in behalf of the defendants, that. Miss D. M. Crawford, on a former trial, testified that “D. R. & W. R. Crawford turned over to her their property.” The ninth exception, therefore, cannot be sustained.

6 But we think the Circuit Court erred in decreeing that Miss D. M. Crawford should account for the annual value of the rents and use of the real property since January 6th, 1885. The evidence does not show that she was guilty of any fraud in the transaction. From all that appears, she took conveyances for the property in payment of her claims against her brothers, and because said conveyances are void, being obnoxious to the assignment act, it does not follow that she holds said property other than as a bona fide occupant. She should, therefore, account only for the rents and profits received by. her since the 6th of January, 1895. The tenth exception is well taken. Jones v. Massey, 14 S. C., 292; Rabb v. Patterson, 42 S. C., 536.

7 There was no error in decreeing that Miss D. M. Crawford should account for the personal property assigned to her, or its value from the date of said transfer, and for the value of any of said real estate which she may have alienated before the commencement of this action. The eleventh exception is overruled.

It is the judgment of this Court, that the judgment of the Circuit Court be modified, as above indicated, as to the rule for accountability for rents and profits, but that in all other respects it be affirmed, and the cause remanded to the Circuit Court for necessary proceedings to carry out the Circuit Court decree as modified herein.