Summary
Error from Wilson District Court.
Replevin, brought by Hannah A. Callison, a married woman, to recover the possession of two horses and two mules, of the aggregate value of $500. The plaintiff claimed to be the owner of the property in controversy, and that the same was wrongfully detained from her possession by the defendant. Defendant Smith claimed that the property belonged to Absalom Callison, the husband of the plaintiff, and that he held it, as sheriff of Wilson county, under an execution against the said husband. The case was tried at the May Term 1876 of the district court. The only witnesses examined on the part of the plaintiff, were the plaintiff herself, and her husband. Regarding the ownership of the property, and the possession thereof, Mrs. Gallison and her husband testified, in substance, “that the mother of Mr. Callison, plaintiff’s husband, gave to plaintiff $1,000 in money; that plaintiff had invested a portion of that money in the property in controversy; that plaintiff had employed her husband, at the stipulated price of $25 per month, and board and washing, to attend to her business for her as her agent.” It was admitted by defendant that plaintiff’s husband had listed the property for taxation in his own name as owner. Other testimony on the part of defendant, and the ruling of the court thereon, are stated in the opinion, infra. The court, after stating the nature and character of the action, instructed the jury as follows:
1. Defendant, as sheriff, claims the right to the possession of the property under levy thereon made by him by virtue, of a writ of execution held by him against Absalom Callison, plaintiff’s husband. The defense is, that there was a fraudulent conveyance; that the claim of ownership on the part of the plaintiff is a fraud upon the creditors of her husband. Under the laws of the state of Kansas, a woman can hold property the same as a man can.
2. The burden of proof in the case is on the plaintiff. She must prove the ownership of the property by a preponderance of testimony. By a preponderance of testimony, I do not mean such a preponderance as satisfies beyond a reasonable doubt, as in criminal cases, but only such a preponderance as dearly outweighs the evidence upon the other side.
3. You are the exclusive judges of the evidence, and of the credibility of the witnesses.
4. Fraud is never presumed, but must be proved like any other fact. The court instructs the jury that fraud assumes many shapes, disguises, and subterfuges; and is generally secretly hatched; that it can only be detected by a consideration of facts and circumstances which .are not unfrequently remote and disconnected. A wide latitude of evidence is therefore allowed, in order that it may b.e detected and exposed. This principle arises from necessity, and is established for the protection of society. Fraud consists of unlawful conduct that operates prejudicially to the rights of others. To defraud, is to withhold from another what is due to him, or to deprive him of a right, by deception or artifice; and fraud upon creditors consists in the intention to prevent them from recovering their just debts by an act which withdraws the property of the debtor from their reach. There are certain acts which, when proven, that the law terms “badges of fraud,” “evidence of fraud,” “signs,” etc. These terms are all synonymous, and denote an act with a fraudulent aspect — an inference drawn by experience from the customary conduct of mankind, and hence may be defined a fact calculated to throw suspicion on the transaction calling for an explanation. The plaintiff claims that she owns the property in question; that it was purchased with her means by her husband, he acting as her authorized agent. The defendant insists that the purchase of the property was made by the husband with his own means, but for the purpose of deceiving and defrauding creditors the purchase was made in the name of his wife. Therefore if you should find that the husband purchased the property with his own means, you will find for the defendant, although the husband at the time acted as the agent of the wife, or pretended so to act.
5. The jury is further instructed, that if a part of the purchase-price of any part of the property in question was that of the husband, and the wife mingled her property or means with that of the husband for the purpose of concealing the husband’s interest in the same, she cannot recover for such property for the purchase of which her property was so commingled.
Verdict and judgment for defendant. New trial refused; and plaintiff brings the case here for review.
1. While realizing the full force of the oft-repeated decision of this court, that it will not reverse a judgment of a district court upon the ground that the verdict upon which it is rendered is not sustained or warranted by the evidence, if there is any evidence at all upon which a verdict could possibly be based, or if there is any evidence tending in any way to support the issues upon the side in favor of which the verdict is rendered, yet we think that in the case at bar we have one of those rare cases wherein the verdict of the jury was contrary to all the evidence in the case, and notwithstanding that it has been sustained by the court below. The record contains all the evidence. We think that a careful examination of the evidence cannot help but produce, in the mind of the court, the conclusion that there is no evidence disclosed by the record which in any way suggests or sustains the verdict rendered. It may possibly be claimed by the defendant that the list of personal property returned to the assessor by A. Callison furnished some evidence for the jury to hang their verdict upon. But this cannot possibly be correct, as it was not shown that these lists were made with the knowledge or consent of the plaintiff, and therefore in the absence of such a showing they could furnish no evidence that in any way tended to disprove the plain tiff’s case. It may be claimed that the testimony of Lucas Covert, jr., tended to furnish evidence upon which the verdict could be based. But assuredly this cannot be so. That evidence could only have been considered, if at all, as impeaching A. Callison, and could not be considered as disproving plaintiff’s claim. The truth of the whole business is, and was, that it is very difficult for juries, in this state, composed of men coming, as most of them have, from states in which the common-law ideas in relation to the rights of married women prevail, to understand or appreciate the rights that have been accorded to married women in this state by our liberal laws; and the jury in the case at bar must have come to the conclusion that Callison’s mother, in giving this $1,000 to his wife, instead of to him directly, committed a fraud upon Callison’s creditors, and that a wife could not make such a contract as she testified she made with her husband. While a court or jury might, perhaps, be warranted in thinking that this whole affair was suspicious, yet we submit that verdicts should not be upheld that show that they must have been rendered upon mere suspicion alone, unsupported by evidence. 44 Mo. 132.
We submit also that Callison’s mother had a perfect right to dispose of her money with which she intended to start her son’s family again with in the world, in such a manner as that the creditors of her son could not reach it — that she had the right to give it to his wife, and that his wife had a perfect legal right to make the contract with 'her husband that she testified to. 9 Kas. 466.
2. Defendant took depositions of sundry witnesses, among them the depositions of Lucas Covert, jr., and W. T. Davis. The court refused to admit their testimony elicited on their examination in chief by defendant, but did admit what they testified to when cross-examined by plaintiff. Now it seems to us that the proposition is too plain for argument, that having excluded the direct examination upon which this cross-examination was based, that it was the duty'of the court, at the request of the plaintiff, to have excluded it also, and that in not so doing it committed a prejudicial error^against the plaintiff, as the court will readily see that the jury must have based their verdict upon this testimony, if they based it upon any testimony at all. But this evidence was utterly incompetent for the purpose of disproving the ownership of the plaintiff to the property in question, and could only have been competent under any circumstances for the one purpose of impeaching the credibility of plaintiff’s witness, A. Callison; and as no time and place was fixed by the witness at which this purported conversation with Callison took place, it was utterly incompetent for such purpose; it can be no answer to say that this was testimony called out by the plain-" tiff herself upon cross-examination, because, as we have shown already, it was at the time it was takeu legitimate cross-examination as to matters testified to by the witness in chief, and was therefore not only a part of the evidence given in chief, but also to be considered as evidence given on behalf of the defendant. 26 Mich. 452.
3. There is grievous error in the instructions given to the jury. The 2d instruction, it seems to us, is a much more unfortunate explanation of what a party who has the burden-of proof on his shoulders must do in order to recover than the one given by the district court in Retford’s case, (18 Kas. 245,) which this court held to be erroneous. We believe that it is an undisputed proposition that a party who has the burden of proof upon a given issue can recover upon such issue by such a preponderance of evidence as merely outweighs that of the other side, and that he is not obliged to have his evidence dearly outweigh the evidence of the other party. 67 111. 545.
The 4th instruction was alike inapplicable and prejudicial. However correct as abstract propositions the law thus given might be, there was no evidence in the case warranting such instructions; and being thus given by the court, the jury had a right to infer that to the mind of the court there was evidence in the ease tending to show “badges of fraud,” and such evidence must be the evidence as to Callison’s mother furnishing the plaintiff money, and the plaintiff making the contract she did with her husband. Now we submit, that whenever an instruction is given without any appreciable evidence upon which to base it, if it is prejudicial it will be such an error as calls for a reversal. 38 Iowa, 581; 9 Wallace, 544.
Again, it seems to us that it cannot possibly be contended that there was the slightest evidence upon which to base the 5th instruction; and from this instruction the jury had the right to infer that the court thought some such evidence had been introduced. In any view of the case this instruction did not correctly state the law, for we submit that a wife has a perfect right (the husband willing) to commingle the husband’s property with her own so as to conceal the husband’s interest, if it is not done with the intent to defraud creditors.
1. There are only three questions in this case. Is there any evidence to support the verdict? Where the defendant relies upon a general denial he may frequently obtain a verdict without any evidence to support it. If the plaintiff fails to introduce any evidence, or only introduces such testimony as no reasonable jury could possibly believe, the defendant would likely repover. Did the plaintiff in this case produce sufficient evidence to justify a jury in giving her a verdict? The only witnesses on her behalf were herself and husband, the j udgment-debtor. They tell their stories, which however are “as transparent as the soup of which Oliver Twist implored an additional supply.” (3 Kas. 521.) The jury needed an “additional supply” of evidence before they could find for the plaintiff. Why did not this “ mother-in-law,” (who seems to be an improvement on the general run of mothers-in-law of the present age,) appear as a witness? She surely knew all about it; and who can better tell what she knows than a mother-in-law? Perhaps the jury failed to see that “impress of truth,” which so convinces juries, in the testimony of those witnesses. Did they tell likely stories? . Is it likely that a mother would give that $1,000 to the daughter-in-law instead of to her own son? Is it likely that she would give $1,000 to her daughter-in-law, and nothing to her own children? Is it likely that the plaintiff would invest her money in fast horses and colts? Is it likely that she.would with the money she received from her husband’s mother hire her husband for the paltry sum of $25 per month, and “washing and mending”— make him a
.....“ Milk-liver’d man, That bear’st a clieelc for blows, a head for wrongs— Who hast not in his brows an eye discerning His honor from his suffering.”
The court below instructed the jury that, “You are the exclusive judges of the evidence, and of the credibility of the witness.” The jury had the undoubted right to disregard the testimony of any particular witness or witnesses if they were not worthy of belief. And how can this court say but that the jury saw fit to disregard these witnesses, and that the jury wei’e justified in so doing? The jurors saw the witnesses upon the stand, and heard them testify. That may also have had some influence upon the trial court, who also heard and saw these witnesses, and subsequently refused to set aside the verdict.
We think that, conceding the burden of proof to be on the defendant, there is sufficient evidence to support the verdict, as, the declarations made by A. Callison, while in possession of and controlling the property — mortgaging it to secure his individual debts — having it assessed in his own name — using it as his at will — taking money out of his business at about the time his mother is said to have given this $1,000 to plaintiff.
2. There was no error in admitting the depositions of Davis and Covert. The general rule was substantially if not literally complied with in each case. A more stringent compliance, if required, would defeat the production of impeaching or contradicting testimony.
3. The court did not err in instructing the jury on the law of fraud. It was defendant’s theory throughout the trial of this case, that plaintiff’s claim to this property was and is a fraud of the grossest kind. Counsel for plaintiff themselves in their brief say, “a court or jury might perhaps be warranted in thinking that this whole affair was suspicious.” What “whole affair was suspicious”? This put-up job of plaintiff and her husband, which they undertake to swear through, and thereby defeat his (the husband’s) creditors? The “whole affair” “suspicious,” and yet not allow the court to instruct the jury as to the law affecting “suspicious” transactions?
But were the instructions applicable? The plaintiff is' the wife of the judgment-debtor; (Bump on Fraudulent Conveyances, 54, 55;) the omission of an important witness, (the mother-in-law,) to testify; (Bump, id. 52, 53;) investing a portion of this money in a fast colt; (Bump, id. 50, 51;) the plaintiff hiring her husband at $25 per month, and “washing and mending,” is entirely outside of the usual course of business and the observations and experiences of life. What was their object in making such a contract? Does the evidence disclose the fact that they lived up to it ? It discloses the contrary. No wonder that counsel for plaintiff thought that the “ whole affair was suspicious.”
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
