Page v. Dixon

Napton, Judge,

delivered the opinion of the court.

The petition in this case states, that on the 2oth of October, 1867, Hackett, administrator, recovered of Dixon $707, and on the 20th of October, 1867, George W. Seiver recovered of Dixon $375; that executions were issued on these judgments bearing date March 11th, 1868; that the sheriff of Bates county levied these executions on the 12th of March, 1868, on certain lands described in the petition, and that plaintiffs became the purchasers.

*46 Before, this, on the 7th of May, 1861, Lewis Dixon and his wife made a deed of trust to Dejarnett, to secure the payment of two notes, amounting to about $600, dated in 1861, and Dejarnett was authorized to sell to the highest bidder at the court house door, after giving a specified notice. The petition states that Djearnett, on the morning of the 10th of April, 1868, fraudulently proceeded to sell said lands, and that Elizabeth Dixon, wife of said Lewis Dixon, became the purchaser. The petition avers that the sale was made at an unusual hour — 8 o’clock in the morning — and that said sale was made after levies had been made of the executions, under which plaintiffs were purchasers. It is further stated, that Elizabeth Dixon, on the 10th day of April, 1868, executed and delivered to one Tucker, a deed of trust of these lands, to secure the note to Dejarnett, for the money she bid on the land.

The plaintiffs claim that this sale under the deed of trust to Dejarnett was fraudulent, and that they, as purchasers under the execution sale as against Lewis Dixon, had the better title. And this question of fraud was submitted to a jury by the Circuit Court, and on this question the jury found for the defendants. On the trial before the jury, a great number of of instrnctipns were asked, some of which were given and some refused. It is not necessary to copy these instructions. The vei'dict was not conclusive in the Circuit Court, nor in this court.

The facts in the case aré really not disputed, except as to the hour of the day on which the trust sale took place. It does.not appear that any particular time was specified in the deed, except that the notice was to be 20 days before the sale, and the sale was to be at the court house of Bates county. There was an attempt to show that notices were not duly given in conformity to the deed, but the testimony of the person who put up these notices seems to be conclusive on this point.

The evidence was conflicting as to the time of day at which the sale was made, some witnesses thinking it was as early as *47 (9) nine o’clock, and others, among whom was the trustee, Dejarnett, testifying that it was after 10 A. M. The evidence on this point was nowise important unless so far as it tended to show a fraudulent couspi2'aey on the part of the trustee with the grantor in the deed, to put the property beyond the reach of the grantor’s creditors. And the main question in the case was, in the Circuit Court, and is here, whether this sale of Dejarnett was designed to protect Dixon’s property from the reach of his creditors. The sale was made to Dixon’s wife, and Dejarnett, the tiustee, made a deed to Mrs. Dixon, and Mrs. Dixon gave her note for a part of the purchase money, and executed a deed of trust to one Tucker to .secure to Dejarnett the payment of her note. This transaction it is urged, was a mere nullity, as Mrs. Dixon could not be held bound on her note nor on her deed of trust. This is true, but the question remains, bow far the plaintiffs have a right to complain of such imperfect security, so long as Dejarnett was satisfied. It is clear jhat they have none, hut the facts are adduced to establish the fraudulent intent of Dejarnett, and in this view they are certainly of much force. This is based on the general principle, that creditors are sagacious enough not to give up good.securities for invalid ones.

But there is also another general principle acted on by courts in their investigation of cases of this character, that in determining the motive and character of the acts of parties, where such acts may be ascribed to either good or had motives, they will presume such acts to have sprang from honest intentions, unless there is clear evideiice to the contrary.

There was no evidence to establish improper motives on the part of Dejaruett, except that the sale took place at an early hour of the day, and the plaintiffs did not get to the "court house till after the sale was over, and never saw the advertisements of the sale. The plaintiffs had judgments against Dixon, subject to the mortgage. At the mortgage sale it was their right and interest to see that the land brought its full value. They knew very well that this mortgage, having *48 been executed and recorded long anterior to the claims on which they got judgments, was entitled to priority over their judgments, and that a sale under it would carry the title, and if they supposed the land was worth greatly more than the mortgage debt, they bad the right, with others, to see that the land brought its full value. There is no evidence concerning the real value of this land, a material fact in the issue presented. Nor did the petition allege that Dixon had no other lands or other property. The proof however, establishes that he did have no other property ; and this defect in the petition may therefore be overlooked.

There is no question concerning the bona fides of the mortgage — when it was made — nor is there any pretense that when it was made in 1860, Dixon was in debt, or that it was made with any view whatever to defraud his creditors, if indeed he had any at that time. The circumstances relied on to establish fraud, whilst they are undoubtedly marks of fraudulent designs, are also consistent with the hypothesis of good faith and when that is the case, this court, on a mere review of the facts, would be very reluctant to disregard the verdict of the. jury, and the subsequent adoption of that verdict by the Circuit Court.

To justify such a course, the facts must be entirely irreconcilable with the hypothesis of honesty and good faith. And upon this view of the case, the judgment of the Circuit Court is affirmed.