Opinion
03-10-1886
BUCKHEIT v. SMITH.
W. F. Hayhurst and C. A. Skillman, for complainant. Voorhees & Cotter, for defendants.
W. F. Hayhurst and C. A. Skillman, for complainant.
Voorhees & Cotter, for defendants.
BIRD, V. C. The complainant has filed his bill to recover the amount due upon a judgment which he holds against four of the defendants. He charges that the other defendant, Mrs. Ely, fraudulently possessed herself of the property which he is entitled to apply to the satisfaction of his claim. I think the complainant fails as to all of the defendants except Mrs. Smith. It is the duty of the complainant to establish the fraud which he alleges. To do this he has felt himself obliged to put the defendants themselves upon the witness stand, and their statements are such as to preclude the court from giving judgment against them; especially so since they are not contradicted in any material respect by other witnesses or established facts or circumstances.
As to Mrs. Smith, the case seems to be different. She declares that she was indebted to her sister for care and attention rendered to her by her sister before the assignment, and that she had promised to pay her sister. It is not at all clear that if such services were rendered they were rendered to Mrs. Smith exclusively. The testimony is quite convincing that they were rendered to others, as well as to Mrs. Smith. Nor can the mind be assured that such services were rendered by Mrs. Ely exclusively; for the testimony tends to show that others joined in the performance of them. There was no account kept between Mrs. Smith and Mrs. Ely. Mrs. Ely does not seem to have made anycharge, preferred any claim, or at any time demanded a settlement until after the death of her father. I have not overlooked the insistment that Mrs. Ely cannot claim any of these moneys under the assignment, even though she paid a valuable consideration, because she is not a bona fide holder. It is urged that she joined with the other defendants for the purpose of cheating and defrauding the complainant. The testimony in support of this insistment is that of a witness who alleges that she was interested in a claim against some of the defendants, and who admits that her memory is so frail and uncertain that she is unable to detail any of the conversation which was had between her and Mrs. Ely, upon which conversation the allegation of fraud is based. The witness says she cannot recollect what took place, but that she made a statement at the time, and that that statement is true, and that Mrs. Ely told her that she wanted her brothers and sister to assign their interest in the estate to her, and that she would hold it for them, so that their creditors could not get it; but that they would not do it,—they would not trust her. It is to be observed that a witness who confesses to such very great uncertainty of memory cannot safely be relied upon to take property from one person and give it to another. It is also to be observed that her whole statement must be taken into consideration, and that a very material part of it is that her brothers and sister would not trust her in the proposed arrangement. It should likewise be considered that the offer upon her part to serve them was some days before the assignment was made; but that when the assignment was made, so far as the testimony stands, it was not only for a valuable consideration, but bona fide as to the brothers, without anything to show that Mrs. Ely designed to cheat their creditors.
I will advise that the bill be dismissed, with costs, as to all of the defendants except Mrs. Smith, and that, as to her, I will advise a decree that the assignment made by her to Mrs. Ely of her interest in the moneys in the hands of the executors of Ashbel Welch, deceased, is fraudulent and void, and that the said executors account to the complainant for the interest of Mrs. Smith in said funds, to the extent of her liability to the complainant.