GRAYES'll. DAVENPORT.
881
of a described mile square lying east of the large rock, just as it states. The written contract between the parties contemporaneous with the deed is also admissible as throwing some light on the intention of the parties when the deed was executed. I am also inclined to the opinion that the documentary evidence from the land department at Washington showing the correspondence between officials of the Indian and land department are admissible; but, giving full weight to such testimony, it cannot overthrow the conclusion which the court must reach from a consideration orall the evidence in the suit. The argument of the defendant's counseHs based upon the theory urged in the ejectment suits that the interest conveyed by Armstrong to Prentice was in the nature of a float to attach to any land afterwards patented under the treaty, and not to a specific tract. This view of the case has never been adopted by this court, and it was held adversely to the defendant in the case before the supreme court of the United States. But it is urged that there was a mistake in the east and west lines as described in the Prentice deed, and that there should be a reversal of these lines by this court, which, if done, would include a large tract of the land claimed by the complainants. The witness Ellis, who drew the deed, testifies that he inserted the starting p,)int and the boundaries given him by Armstrong, and Armstrong himself testifies that he dictated the description by boundaries to Prentice,' and I can find no evidence showing that there was a mistake in the specific boundaries. On the contrary, if we are right in the expected to acquire under the conclusion from the evidence, treaty the square mile lying east and north of the large rock, and that is all the land he claimed. There are many minor points urged by the defendant's counsel, but, in the view taken by the court, none of them, if decided in favor of the defendant, would bar the relief claimed in the complaint. Decree ordered for the complainants.
GRAVES'll. DAVENPORT
et al.
(DiBtrl.ct Court, N. D. ILLinois. June 8, 1899.)
1.
WITNESSES-CREDIBILITy-ADVERSE PARTY AS WITNESS.
A complainant who has called defendants as his witnesses is bound by what they say, and cannot ask the court to disbelieve them, or to infer that they have testified falsely. A wife gave to her husband '1,100 inherited by ber, with which he bought a farm. He afterwards sold the farm, and with the proceeds bought another farm. When he wished to sell the second farm bis wife refused to join in the deed unless some provision made for her money, which he had had for 18 years, whereupon he gave her his note for $8,000. Held, that the note was given for a good considerst,ion.
2.
HUSBAND AND WIFE-PROMISSORY NOTE-CONSIDERATION.
8. PARENT AND CHILD-COMPENSATION FOR SERVICES.
Where a son works faithfully for his father on a farm for 10 years after his majority, his services area good consideration for the father's promise to pay him
.
V.50F.no.1l-56
nDImAL ; ,
REPORTER,
vol 50. .' . 'J' . :;'. " ",
.. ,'10Dsideration orB: by a. father to his son, the iOllBjlffl,ed tli assj:tDiean\1'liay a He hi&'lBnd:tohUi !1"1!! br9 t.ll.er .. lJlliOOs.ea.ry the, :prother a check on '. q which wllre no funds to pay it. The cbeck was given to the mother in p.,a. b'1e . her claim, aOO '8he afterward,.e.x.cbangeditl. for,.. her,brother's note. was at but the other parties, had no knowledge of liaqt. . Beld, th,at hi which the debt was paldwaa not silftillientto show a to defraud the'father'a oreditors.· , I,
In by Amos C. Graves, assignee in bankruptcy of Theron' Davenport, against Josephus Dllvenport,D.eborah Davenport, and Coe Swartout, to set aside certain conveyances on the ground of fraud; Wheaton, for Mmplainant. H.,H,: Cody and Mark Bangs! for defendants. BLODGE'rT,District Judge. This is a bill in equity by the assignee of Theron Davenpott, a bankrupt, seeking tenet aside certain conveyances of real and personal property made by the bankrupt to the deleqdants Josepbus,D8Ivenport andiDeborahDavenport, on or about the 6th day of November, 1877.. n appears from the proof that on the 6th day of NovetlJber, 1877, the said Theron Davenport, who was then, in fact, into his son\ the defendant Josephus Davenport,a conveyance of a farm situated iJiKane county, containing about 348 acres of land', for the nominal or expressed sum of $13,928,and that he also at the samertime, made to the said Josephus a bill of sahH>fmost of the live stock 'and t"armingim plemellts upon said farm, for the expressed consideration of $3,800.' The assignee seeks by this bill to set aside this conveyance, on the.grbund that- at was fraudulent as against the creditors of TheroriDavenport, the bankrupt. The evidence in the case is meager, in many respects fr.agmentary, but the following facts may be said to be clearly established by it: . The bankrupt, Theron Davenport, had been, for several years prior to the transfer in question, in possession of the farm. His son. Josephus, who at the time of the transfer was about 32 years old, had resided with him from the time he r:eachedr majority, had devoted himself faithfully to managing arid conducting' the affairs of the farm, with no between hilllself and his father as to the amou'lt which he was to receive 'for his services, except that the father had frequently.assured Josephus that he \Vo,uld do well by him if he woril(i'$bI.Y witb'bhn and carryon the 'farm. For 10 or 12 'years before the transaction the bankrupt, Theron Davenport, had been engaged in buying !lnd selling catp.e, and live stocl>: havfnggiv8Q little, if at;ly,'sttentiOnto the affairs of his reputed and believed to farm. He was in good hea man of ample But for some time before the transfer of the farm to Josephus, Josephus had been importunate to have the amount which was due him, or which·· he was to receive for his services.· detetmined. atul fot a settlement with his father; but his applicatlonsiri . that regard had been' deferred and postponed by the
m.,
GRAYES
v.
DAVENPORT.
father by one excuse ap.4 another until finally, Just previous to the transfer,. he proposed to Josephus to convey to him the farm, which was then .subject to a mortgage of $3,000, in full satisfaotion of what he owed Josephus for his $ervices, which they had adjusted a few days previously at $5,042, and that he" Josephus, should pay enough money to liquidate and pay a claim which was held by the defendant Dehorah Davenport, the wife of the bankrupt, against her husband, amounting, including interest, to $5,885.83, and loat he would assume and pay the $3,000 incumbrance upon the farm; making the purchase price for the farm, as above stated, $13,927.83, which was equivalent to about $40 per acre for the land. At the same time the bankrupt made a bill of sale to the defendant Josephus of most oC the live stock and farm implements upon the fium, the consideration for which was an agreement on the part of Josephus to pay certain indebtedness of his father's, for which he, Josephus, was holden as surety, amonnting to $3,800. The bankrupt law, as it stood at the time of this transaction, required that, in order to entitle the assignee to recover back any paythat it was a fraudulent ments or property transferred on the preference or a fraudulent transfer, the person receiving the preference or transfer should know that the grantor was insolvent, and that the conveyance or payment was madem fraud of the provi::;ions of the bankrupt act. In support of the allegations of the bill the complainant relies mninly upon the testimony 01 the bankrupt and the two uetimdants JosephUS and Deborah Davenport. He llll::; called upon them to testify, and made them his witnesses in that behalf. The defendant Josephus testifies that he did not know at the time he received this property that his father was insolvent, or that he owed any other debts than those which were canceled or prll\-ided for under this transaction. That he supposel} that by this transaetion his father virtually provided for the payment of all hi!l indebtedness; that his father kept no books, and that he was not aware that he was involved in deht. The defendant Deborah Davenport testifies that she did not know that her husband was involveu in debt. She supposed that all the indlJbtedneE'S he had was what he owed to herself and her son, and she had no idea of Rny other indebtedness. She was lalJoring under the belief that he was in prosperous and independent circumstances, aside from his interest in the tarm. This testimony is attacked by the cOlllplainant's counsel upon the ground that it is improbable and incredible that these two witnesses. bearing the close relation they did to the bankrupt. should not have known more about his affairs than they testified they actually did. I do not think, in the light of the testimony of these witnesses, that their ignorancfl in to the extent to which he was involved in debt is improhable, or of belief. The bankrupt WitS a trader, stock away from his farm, engaged in the bU,ving and selling of kept no books to which either his wile or his son had access, and mnde no diijclosures, .as the proof shows, to them of his tilll;tucial conditiol,1.
nllbAL
REl'<>RTER t
vol. 50. in
live stockby his father; and had no occasion, therefore, to becoDJe fa-
the farm, took no part ill
miliarwith the financial condition of his father growing out of his dealings, There is no presumption that the bankrupt disclosed his financial condition to his wife, and nothing in the record contradicts her denial of the fact that she did not know of his insolvency" The only testimony which complainant has introduced, aside from that of the defendants J osephusand Deborah, which tends to charge either of them with any of the ills'o,lveney of the bankrupt, is that of one Farren, who testified to a conversation had with Josephus about the time of the adjudication of bankruptcy, in which 'Josephus said, or in which he says that Jos'ephus stated; that his father had been insolvent three or four years. This witnes's contradicted by Josephus Davenport, and, with the improbability of his having made such a statement to a comparatively entire stranger, 111m inclined to believe that Davenport's statement is true. Aside from this, however, this testimony of Farren; itseetns to me, should, be excluded from the consideration of the court on the ground that this oomplainant, having called Josephus' Dnvenport to testify, cannot beaH0wed to impeach his testimony. In this connection I may also add1hat the complainant, having called both Josephus and Deborah to testify in the, case, .and presented them as reliable witnesses,is bound by what they say, and cannot ask the court to disbelieve them, or to infer that they have testified falsely, and that they must havehad,as is insisted by :complainant; actual knowledge of Theron Davenport'Binsolvency. I am therefore quite clear that the complainant' has failed to prove that either ofthese defendants knew of the solvenc)'of Theron Davenport at the time they received payment in full upon thei'!' respectivedemhnds against him. ' · Thecomplamant insists further, however, in regard to this feature of the case, that the bankrupt wus not indebted to his wife, Deborah Davenp<llrt;and that, the payment to her was fraudulent: The proof shows that soon after the marriage of Theron and Deborah Davenport she' received from her grandfather's estate about the sum of $1,100,' which she gave over toher husband, to be used in the purchase of a farm, This occurred about 1850. A farm was purchased,and after about 10 years it was sold,and with the another farm was purchased. · After a few years Theron Davenport wished to' sell the second' farm., and his wife then declined to sign a deed .releasing her dowerandhome.stead right in that farm, miless some prov.ision was made for harmoney; as she called it, which had. been invested in the original farm; and at 'that time, as the consideration of her signing the deed of the second farm, he gave hera note for $3,000, which repres&rtted the original$l,100, and about 18 years'interest. The farm rto""in'question wRspurchased with the proceeds of the second farm, and Mrs: Davenport had t:ontinued to hold this,note,'which, by itstermsl was due one day after date, and drew inte't'est at the rate, of 10 per until the tml1saotion between her husband: and son cent. per on the 6th·()f November. In the light of ,the Illinois authorities, I
QUA.VES II. DA.VENPOUT.
885
think this note was given upon a good consideration, as between Mr. and Mrs. Davenport. He had had her money, and there was an obligation on hil:l part to recognize her right to a substantial interest in the property which had grown up from the investment of her money. So that when she demanded a recognition of her right in 1868, at the time the second farm was sold, I have no doubt that it was entirely competent for him to do so, and made the note for $3,000 to his wife a good and binding obligation. The Illinois cases referred to are McLaurie v. Partlow, 53 Ill. 341; Bridgford v. Riddell, 55 Ill. 261. But f1Side from this, the proof also shows that she declined to sign the deed for tl1e second farm, and release her dower and homestead rights, except on condition that he should give her this note, and that, of itself, would. make a sufficient consideration. Yaze[ v. Palmer, 81 Ill. 83; Meihker v. Bonebrake, 108 U. S. 66, 2 Sup. Ct. Rep. 351. It is also contended that nothing was due from the bankrupt to his son, Josephus, at the time of the sale of the farm, and that, therefore, the pretended allowance of $5.,042 on the purchase money for Josephus' service was fraudulent. I think, however, the proof shows.1hat the son had rendered faithful and meritorious service for his father· for upwards of 10 years; that the amount agreed upon between himself and. the father was not extravagant, under the circumstances, and ;shows no evidence of a fraudulent intent. Much is said in the briefs and argument of counsel for the complainant in regard to the way in . which the claim of Mrs. Davenport was. paid. The proof shows that Josephus understood when he agreed to. take the farm on the terms proposed by his father that he was to raise money enough to settle the claim ·of his mother against his father; that his expectation was to raise this money by a mortgage upon the farm, and he had started jor Aurora to make negotiations for that purpose, when he met the defendant, Coe Swartout, and on mentioning to Swartout the purpose of his visit to Aurora, Swartout at once proposed to loan the money necessary to pay the debt to Mrs. Davenport, an!!, Ulke, a mortgage upon the farm. Swartout is the brother of Mrs. Davenport, and, as the proof shows, was reputed and believed, both by Mrs. Davenport and Josephus, to be a man of quite independent means, a farmer residing in Seneca cqunty, N. Y., with means to the extent of $30,000 or over. Josephus accepted this proposition made by Swartout, and a mortgage was made to Swartout upon the farm to securethe!\umof$5,885.83, being the amount due Mrs. Davenport from her husband, and Josephus received from Swartout $1,400 in money, and a check upon a bank in {)Vid, Seneca county, N. y" for $4,485.83. Josephus then passed over to his father, Theron, the check and the money he had received from Swartout, and, Theron delivered them to his wife, and took up his note. Subsequently an arrangement waS made between Swartout and Mrs. Davenport by which she surrendered the check to him, and took Ilis note six years after date, with interest at 8 per cent; per annum. The complainant has introduced testimony tending that Swartout was not a money and ha<l,no
,!hic.h' ,this>cbeck was n11N1n8,at,hll.nd wIth whIch ,toha\l'e' made good theO'heck at theballk. Tllis'qUie&tio'n has; .however, it seems· to me, .become, wholly immaterial, and is'really eliminated from the Controversy by the fact that'the check was surrendered., and Mrs. Davenport took in lieu thereofthe note of Swaitout,'with'whichsbe was entirely satisfied. !tis insisted on the part of the complainant that, altogether, the transaction between the bankrupt and his wife and son; and the transaction between the son andSwa.rtortt,'and Swartout and Mrs. Davenport,'shows a conspiracy on the. part of these parties to defraud the creditors of Theron Davenport·. It is sufficient, however, I think, to say that these parties, who have been examined as witnesses, all deny any such conspiracy, deny that they' knew there were any creditors to be defrauded, and deny any bad faith in allY of the transactions whichal'e attacked by the bill. And whatever may have been the purpose of Theron Davt::nport in making the conveyance tO'his Ron, the case, as I have already said, entir.elyhrc:ks proof of any knowledge on the part of the son or wife of a fraudulent intent on the part of the bankrupt. With regard to the sale'of,:the personal property by the bankrupt to Josephus, the evidence is: olear,and: 1 may say undisputed, that Josephus was responsible: a8 surety onbis father's paper for the full amount of 83,800; that the property probably would not have sold for more than that is doubtful, I think, if it would have brought the amount for which Joseph us was liable. He agreed to take thE' property arid supposed, thereby relieving his father from allinuebtedness, anll heihas paid the debts as he agreed. The trans.. not, as it seelils tome, show any evidence of fraudulent intent, so' hlhgas there is; no proof of any knowlE'dge of the lather's in. solvency. thE'Se reDecms I am of opinion that tf.le complainant hus not Jluide out ra ()ase by ,the proof which entitles him to have this con· veyancif $tit aside, and UUit the bill should be Jismissed ior want of equity.'ilt
.rOHNSTON t1. CANADtAN PAC. Ry.. Co. (CircuU' Court;D;:Veniwnt. June 20, 1892.) L 4'N'1) The .JIlepe of a freight ttal" to a brakeman, who fs thereby thrown' rtouf the. rear car. '\B not actionable, 'unle88 Buch Btarting was suddenly. violell,tly" or: negligently clone.' .
9.. SAMIIl-
S.
A brakeIJiI'i1, suing fO.r alleged to reBulttrom the known incom. petehcyofttu' conductor, need Dot set out the pal'ticularB of the conductor'. incompetBMf··. . ...' . ' OP OP LAWB.. .
.' .'
In anactlolt in Vermont-bya railway hrakeman againBt the company for pel'Bonal .(KlC8.!;ioned in tpe province of Quebec, Can., defendant in its pleas set out "a geneJ"llllaw of the province of Quebec," "that all BuitB for any damage or injurY' .u'Btained by reaBon of the railway &hall De 1tletltuted within J.j