Bernheim Bros. & Uri v. Dibrell & Hill

1. Practice. Hutting witness under rule. Sight of party to be present. The rule authorizing witnesses to be excluded from hearing the testimony of others, does not apply to parties to the cause. If a party proposes to testify in his own behalf, the extent of the court’s power is to require himi first introduced. In case of joint claimants, it is error to exclude one while: the other is testifying. It is the right of both to be present during the entire trial. French v. Sale, 63 Miss. 386, cited. 2. Fraud. Evidence of other transfers about same time. In case of an alleged fraudulent transfer, evidence of what the grantor did at or about the time of mating it is admissible. It is not essential that the acts should be contemporaneous with the one under investigation. If they' are so closely related in time, before or after, that the intent governing in the one transaction may fairly be inferred to be the intent which controlled in the other, the evidence is competent. 3. Same. Question for jury. If the intervening time is short, it is not for the court, as matter of law, to say that the one act does not shed light on the other. It is for the jury, in the light of all the competent evidence, to pass upon the question of the motive in making the transfer. 4. Fraud. Claimant’s issue. Grantor’s insolvency. On the trial of a claimant’s issue, in such case, as the fraud of the grantor is a fact necessary to be proved by an attacking creditor, it is permissible to show that the debtor, at the time of making the transfer, owed more than the value of all his visible property subject to execution; and this, whether the purchaser knew of such debts or not. 5. Peremptory Instruction. IIHien improper. Peremptory instruction to find a certain way is improper unless the court, • on the evidence, would set aside a contrary verdict.

From the circuit court of the second, district of Chickasaw county. Hon. Lock E. Houston, Judge. On April 15, 1887, M. A. Pollard, wife of O. Pollard, sold to appellees, Dibrell & Hill, a stock of drugs, in the town of Okolona. On the next day appellants, Bernheim Bros. & Uri, creditors of Mrs. Pollard, sued out an attachment against her, alleging a fraudulent disposition of her property, and levied upon the stock of goods sold to Dibrell & Hill. Judgment by default was entered against the defendant in attachment, and a claim being interposed by Dibrell & Hill, in respect to the goods they had purchased, an issue was made up and the case came on for trial. Both claimants were sworn as witnesses in their own behalf. When Dibrell was introduced the court, at the instance of plaintiffs, excluded Hill, the other claimant, and he was compelled to remain absent from the room while his co-claimant was testifying, it being announced that he, Hill, would also be introduced. The claimants objected to this and reserved an exception. Verdict and judgment being in favor of plaintiffs, the claimants moved for a new trial on this and other grounds, and a new trial was granted. On the second trial, in seeking to show that the sale to Dibrell ■& Hill was fraudulent, plaintiffs, among other things, offered evidence to prove that the defendant, Mrs. Pollard, on the night of the day she sold the goods to claimant, and very early next morning, made fransfers of the property for the fraudulent purpose of defeating her creditors. Claimants objected to this because the evidence related to acts occurring after their rights had accrued, and the testimony was rejected. To this action of the court plaintiffs ■excepted. The defendant, Mrs. Pollard, was a sister of one of the claimants, and the other claimant was her brother-in-law. In view of the relationship of the parties and the facts and circumstances ef the transaction, plaintiffs contended that the sale was made to defraud creditors, and that the purchasers knew this as a fact, or were put upon inquiry, and were therefore affected with notice. Testimony was also introduced by plaintiffs to show that at the time of the sale Mrs. Pollard owed debts greatly in excess of the value of all her visible property; but, because it could not be shown by direct evidence that the claimants knew of these debts at the time of their purchase, objection was made and this evidence was excluded. Plaintiffs excepted. Plaintiffs sought to have the question of fraud and participation therein passed upon by the jury and offered various instructions with that in view. These were refused, and, at the instance of ■claimants, the following instruction was given: “ The court charges the jury that there being no evidence of any notice of fraud “to claimants, they will find for claimants, notwithstanding any fraud which Mrs. Pollard may have committed.” From a judgment in favor of claimants, after motion for new “trial overruled, plaintiffs appealed. The first verdict in favor of plaintiffs was right and should not Pave been disturbed. The fraud of Mrs. Pollard was abundantly shown. >She had pocketed the insurance money, had discounted paper, and had gotten in all available assets. This was a sale in thefamily — a family reunion was held at the time, and all strangers were carefully ex•cluded. The purchasers, Dibrell & Hill, were inexperienced young men, farmers, who knew nothing of the drug business. They had no conference as they rode into the town the day of the sale. The trade was all arranged between Hill, Sr., and O. Pollard, the husband of the defendant. The circumstances show that Mrs. Pollard herself furnished the money that was ostensibly paid — at-least the portion of Hill. If the purchasers did not in fact participate in the fraud, they had notice of the fraudulent purpose of the grantor. If they were put upon inquiry by the circumstances, or, if from all the facts notice of the fraud was to be inferred, their purchase was illegal. It was error to exclude proof of the debtor’s insolvency. That was an independent fact and a part of the fraud. If we failed to show that the claimants had knowledge of the .indebtedness, or such notice as would pu.t them upon inquiry, then the court might have instructed the jury that their title was not affected by the fraud of the vendor. But the case should have been left to the-jury under proper instructions. It was error for the court to assume that there was no notice of the fraud and to instruct the jury to find for claimants.