Partelo v. Harris

Ellsworth, J.

The question made in this case we, consider as having been settled in that of Beach v. Catlin, 4 Day, 284 . The evidence offered there and rejected by the court, consisted of a proposition of the grantor to a third person, to make a fraudulent deed to him, not brought home to the knowledge of the grantee. The court say: “ It was formerly the practice to admit what was said by a fraudulent grantor respecting his intent to defraud his creditors prior to the conveyance, as evidence in an action against the supposed fraudulent grantee, though he had no knowledge of it; but this practice can not be warranted on principle, for the grantee ought not to be affected by the declarations of the grantor, unless they come to his knowledge; and though a grantor may have a fraudulent intent, this may be wholly unknown to the grantee and the transaction may be bona fide on his part.” This decision has been followed to the present time. Barrett v. French, 1 Conn., 365 . Pettibone v. Phelps, 13 id., 445 . If, indeed, the grantee has knowledge of the fraud of the grantor, or of the indicia of his fraud, it will be safe and proper to hold him responsible accordingly, and let the jury pass upon the evidence ; but otherwise it should not be submitted to them, as it is not safe nor in harmony with the laws of evidence to allow counsel to press upon a jury the fraud of one man to make out fraud in another, without some proof of conspiracy or collusion being first introduced. Such evidence is unsafe because it is irrelevant, indirect and remote; and Starkie speaking of it says: “ To assert or write that a particular fact is true, is in itself, strictly speaking, a fact, but it is not one that is necessarily and immediately connected *483 with the transaction, and at all events it is not a fact which will generally afford any reasonable and fair presumption of the truth of the recited fact, but such as in general would tend only to prejudice and mislead.”

We are aware that there are cases in Massachusetts, and possibly elsewhere, to the point, that to make a conveyance fraudulent there must be a fraudulent intent on the part of the grantor, and that it is proper to prove this by the acts and declarations of the grantor himself, even if the grantee has no knowledge of them ; but this is not our law nor our practice. At all events, the great and necessary fact to be established is the fraud of the grantee, whose title is attacked for fraud of his own; without which no case of a fraudulent conveyance is proved, and with which a case is proved and established. A new trial is not advised.

In this opinion the other judges concurred.

New trial not advised.