Gallagher v. Williamson

Crocker, J. delivered the opinion of the Court—Cope, 0. J. and Norton, J. concurring.

This is an action to recover damages for the alleged taking of a stage-coach, horses, and harness, by the defendant from the plaintiff: It appears that Patrick Gallagher, the plaintiff’s brother, was formerly the owner of the property in controversy; and becoming embarrassed and insolvent, he executed a bill of sale to the plaintiff, at the request of a sister, Mrs. Giblin, dated August 20th, 1861, to secure, or in payment of, a debt due from Patrick to the plaintiff. At that time, Patrick was indebted to the defendant, Williamson, who commenced an action thereon a few days after-wards ; and on the sixteenth day of September, recovered judgment thereon, for $1,104.58 and costs; on which judgment an execution issued, which was duly levied upon the property in question, and the same was afterwards sold on the execution. These acts constitute the alleged taking. The defendant contended that the sale to the plaintiff was made to defraud the creditors of Patrick Gallagher, of whom he was one, and that there was no immediate delivery or continuous possession in the plaintiff within the Statute of Frauds; and that the sale was therefore void as to him.

It seems the bill of sale was made' in the night time of August 29th, in the absence of the plaintiff—the contract on his behalf being made by Mrs. Giblin, who acted as his agent. At the trial, one Lay was called as a witness for the defendant, and testified that he had a conversation with Patrick Gallagher the next morning, to wit: August 30th, about the transaction, in which the latter told him the purpose for which the bill of sale had been made. He was then asked to state what he told him upon the subject; to which the plaintiff objected; that such statements were mere hearsay, and they were made after the bill of sale was executed. The Court sustained the objection, and this is assigned as error. The Court clearly erred in its ruling on this point. The defendants had an undoubted right to prove that the vendor made this bill of sale [333]for the purpose of defrauding his creditors; and his statements upon the subject, whether made before or after the execution of the bill of sale, were competent evidence to prove that fact, as against him. Whether such statements were evidence against the vendee, depends upon circumstances. The defendant insists, that at the time this conversation occurred, the sale had not been completed ; that Mrs. Giblin had no authority from the plaintiff to make the contract; and he did not, until afterward, know of the sale to him, or ratify it. If these statements were made to the witness before the sale was in fact completed, they were admissible in evidence against the plaintiff, as statements made by the vendor before he had finally parted with his title to the property; and whether they were thus made was a question for the jury to determine from all the evidence.