CLEMENTS V. MOORE, 73 U. S. 299 (1867)

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U.S. Supreme Court

Clements v. Moore, 73 U.S. 6 Wall. 299 299 (1867)

Clements v. Moore

73 U.S. (6 Wall.) 299


1. An objection to an amended bill in chancery because not filed with the leave of the court below (as it is contemplated by Rule 45 of the equity rules that such bills should be), or the objection that a replication is not in a sufficient form under Rule 66 of the same rules, cannot be first made in this Court. The objection if not made below is waived.

2. A paper put in after the answer filed and after part of the testimony has been taken, stating that the "plaintiffs in the cause hereby join issue with the defendants (naming them), and will hear the cause on bill, answer, and proofs against the defendants," is a sufficient replication.

3. A purchaser of a stock of goods from a debtor confessedly insolvent, where the purchaser knows that the debtor's purpose is to hinder and delay a particular creditor, and also that if the debtor intended a fraud on his creditors generally, the purchase would necessarily be giving him facilities in that direction, is not responsible in equity (the sale being an open one, for a fair price, and followed by change of possession) for any part of the consideration money which the debtor had applied to payment of his debts, but is responsible for any part which he has diverted from such payment.

4. Statements, either oral or written, made by the vendor after such a sale are incompetent evidence against the purchaser on a suit by the particular creditor to set the sale aside.

5. A complainant in chancery cannot, by waiving a verification on oath to the defendant's answer, deprive such answer, when made with such verification, of its ordinary effect.

6. In chancery, when an answer which is put in issue admits a fact and insists on a distinct fact by way of avoidance, the fact admitted is established, but the fact insisted upon must be proved; otherwise the admission stands as if the fact set up in avoidance had not been averred.

7. Where a creditor shows facts that raise a strong presumption of fraud in a conveyance made by his debtor, the history of which is necessarily known to the debtor only, the burden of proof lies on him to explain it, his estate being insolvent.

8. In this case, three answers in chancery denying allegations made in a bill of fraud on creditors by an admitted conveyance of real property on the part of an insolvent debtor to his wife through a third person held not to disprove the allegations, the answers being discrepant in striking particulars from each other and, as respected the consideration, with the deeds themselves; no proof being given of the mode of payment by the third person (who, it was set up, had purchased the property from the husband for himself, and afterwards sold it to the wife on payment from her separate property), nor any proof beyond the answers of her husband and herself and a previous statement of the

Page 73 U. S. 300

husband, then arranging the transaction, that the wife ever had any separate property.

9. In this case the Court states the different modes in which law and equity respectively deal with fraudulent conveyances.

Clements and Sheldon, judgment creditors of James Nicholson, filed in that court their original and amended bill (the last apparently without leave of court, as required by Rule 45 [Footnote 1]) against Nicholson, his wife, and a certain Moore to set aside on the ground of fraud:

1. A sale by Nicholson of his entire stock of merchandise (dry goods); and

2. A conveyance by him to Moore and by Moore to Mrs. Nicholson, of certain lots in Bastrop, Texas.

The bill charged that in November, 1852, the defendants obtained judgment against Nicholson for a debt contracted in March, 1851; that on the 5th July, 1851, Nicholson, having then on hand a large stock of goods, worth $12,000, but being in failing circumstances, sold them to Moore for $7,000, this sum being paid only in notes of Moore due at different times; that Moore knew Nicholson's condition; that the sale was collusive and meant to defraud Nicholson's creditors, a secret arrangement having existed between the parties to share any profits that Moore might make on a sale of the goods.

As to the real estate, the charge was, that at the same time with this pretended sale, Nicholson had transferred to Moore five lots in Bastrop, to-wit, three lots known in the plan of the town as Nos. 62, 65, and 70, and also two others, to-wit, No. 95 and fractional lot No. 4, both east of Main Street; that this transfer was without consideration or with a nominal one only, and that the lots were now claimed by Mrs.

Page 73 U. S. 301

Nicholson -- a redemption or repurchase by her being fraudulently set up with a view of furthering the plan of Moore and Nicholson to defraud the creditors of the latter.

Each defendant filed an answer.

NICHOLSON, admitting the debt charged, denied every allegation of collusion or fraud.

As to the goods, he averred that the allegation of an understanding that he and Moore were to share profits on a sale of the goods transferred, was "absolutely untrue and false," and in answer to special interrogatories stated that the goods cost in New York $8,556; that they were sold to Moore at 20 percent discount on that cost -- the sale amounting thus to $6,310, which he declared was their full worth.

As to the lots, that the sale of these had nothing whatever to do with the sale of the merchandise; that Moore purchased them in good faith, paying therefor the sum of eight hundred and sixty dollars; that subsequently to this sale it was agreed that they might be repurchased at the same price at which they were sold, with interest; that they were accordingly repurchased by his wife, Rebecca Nicholson; that the intervention of his wife was not for the purpose of defrauding the complainants or the other creditors. On the contrary, that it was for the purpose of securing the separate property of his wife, so purchased in good faith by her from Moore with her own means. The answer alleged that when he married the said Rebecca,

"she was a widow, having a considerable amount of separate means and money belonging to herself and to her child by a former husband; that from time to time she lent him these means to aid in carrying on his business until the amount exceeded $500; that after the sale of said goods this defendant, in payment of said borrowed money, transferred one of Moore's notes for $500 to her, and that with it and other of her separate means she purchased the lots from Moore;"

that in fact the lots had been purchased for the father of the defendant, and that the only reason why the defendant did not take the deed in his father's name was because he was an alien; that his father had ever since that time occupied them as a homestead under an

Page 73 U. S. 302

arrangement with the defendant's wife that she should repurchase the property from Moore and permit her father-in-law, now old, to occupy it during his lifetime; that the arrangement between Moore and the defendant's wife was not a mortgage, but a purchase in good faith; that his wife, having paid Moore, had, in the spring of 1853, filed a bill in the District Court of Bastrop County to force him to reconvey the lots to her, and that the court had decreed a reconveyance, except as to No. 4, and also one lot, No. 95, "which was redeemed and sold to pay a debt due from defendant;" that Moore was ready to convey, and that in this arrangement some creditors who had levied upon the property concurred.

MOORE, admitting that it might be true that Nicholson was in failing circumstances (though of their extent he, Moore, knew nothing), denied all knowledge of the debt to the complainants.

As to the goods, he admitted the purchase at the price stated by Nicholson, for which price he alleged that he had given notes, which he had since paid; that the purchase was made by him in good faith, reluctantly on his part and only after Nicholson had offered his goods to others without their purchasing; that the goods at New York invoice prices amounted to $7,887.75; that they were originally invoiced at high rates, and, being a broken and culled stock, were not worth New York cost in Bastrop. He denied all collusion with Nicholson and all partnership in profits, and alleged that the profits which he made, if any, on the goods were so inconsiderable as not to be worth naming.

As to the lots, that on the 12th June, 1851, anterior, therefore, to the purchase of the goods, he, Moore, purchased them for eight hundred and sixty dollars, which he paid in good faith; that it was agreed with Nicholson "that the lots might be repurchased for the same sum, with interest at ten percent."

The answer of Moore made the same statement as to the decree in the District Court of Bastrop as was contained in the answer of Nicholson, adding that in the matter of the decree, "this defendant had not intended collusion with anyone;"

Page 73 U. S. 303

that the lots were "not redeemed, but repurchased by Mrs. Nicholson," though whether out of her own funds the respondent did not know, except as he was assured by Nicholson that they were so purchased.

MRS. NICHOLSON's answer (which the complainants offered to receive without oath but to which nevertheless she swore) was confined to the lots, the matter which was the subject of the bill so far as respected her. Denying all fraud, her answer stated that when she married Nicholson, she had in ready money the sum of about $1,000, her own separate property; that her husband informed her that he was much pressed for some ready money, and agreed with her to give her in pledge two promissory notes of Moore not then due, for about $500 each, for the use of this money; that she did give to her said husband the use of her said money, and took in lieu thereof the notes. She did not remember distinctly when she made the arrangement, but thought that it was some time during the year 1849 or 1850, and

"that it was some time afterwards that she surrendered to the said Moore the said notes in discharge of a mortgage, which said Nicholson had before that time executed to him on the lots."

A part of the testimony having been taken, the complainants filed a paper thus:

"The plaintiffs in this cause hereby join issue with the defendants [naming them all], and will here the cause, on bill, answer, and proofs, against the defendants."

The sixty-sixth rule of practice prescribed by this Court for courts of equity of the United States orders that:

"Whenever the answer of the defendant shall not be excepted to &c., the plaintiff shall file the general replication thereto on or before &c. [The rule makes the cause then at issue.] If the plaintiff shall omit or refuse to file such replication within the prescribed period, the defendant shall be entitled to an order, as of course, for the dismissal of the suit."

THE FACTS, so far as proved by testimony, seemed to be thus: Nicholson was a trader at Bastrop, and in the spring

Page 73 U. S. 304

and summer of 1851 was in fact embarrassed and generally reputed so to be in his affairs.

As to the goods. After the sale of the merchandise, it appeared on the one hand that a short time previously to the sale of them -- one House then pressing him through Mr. Larkins, an attorney in Bastrop, for payment of a debt due him, and the attorney and Nicholson entering, somewhat confidentially, into consideration of the latter's affairs -- Nicholson stated that he could pay House's claim, but that doing so would leave him so much embarrassed that he was afraid that a certain New York firm, which was named (and which was, in fact, the complainants in this suit) would

"come down on him and appropriate his effects to the exclusion of a large amount of home and other debts, which he thought ought to be preferred under the circumstances."

The debt of House having, through the efforts of Mr. Larkins, been satisfied, that person suggested to him the propriety of making to someone an assignment, by which provision could be made for any creditors whom he might wish to favor, and suggested the name of Moore as "a suitable man to close up the business." While Nicholson and Larkins were thus conversing, Moore happened to pass along in the street, and they, seeing him through the window, called him in. Nicholson then proposed to him to accept an assignment such as above mentioned. Moore said that he would take the matter under advisement, and the next day Larkins was desired to draw up such an assignment as had been contemplated. Becoming indisposed, however, the drawing of the deed was deferred. On getting to his office again several days after the original conversation, Moore called to tell him that he had decided not to take an assignment, but had purchased the goods absolutely.

As to what passed between Nicholson and Moore at the immediate time of the sale itself, little was shown by proofs except that it was made on the 7th July, 1851, Moore who had been confidentially asked to take the assignment, knowing, of course, that Nicholson was insolvent, and probably being informed as well of the motive of the assignment,

Page 73 U. S. 305

viz., to protect the "home creditors" against Clements and Sheldon. It was shown, however, that Moore took immediate possession of the store where the goods were and proceeded to retail them; that they were not worth more than he gave for them, and that after a fair sale, time and expenses being considered, he had lost rather than made money. It appeared also that all the notes which he had given as the consideration of the sale had been applied by Nicholson to the payment of his unquestioned debts, with the exception of three -- one of $500, which he sold for $375 cash, and two of the same sum each, which it was alleged that he had handed over to his wife under circumstances hereafter mentioned.

On the other hand, as respected the sale of the goods, it was testified by one Hall that sometime after it, Nicholson, wanting money, offered to sell one of the notes given on account of it (the note for $500 just spoken of) to him; that he, Hall, went to Moore to see if the validity of the note without offset was acknowledged, taking at the same time an open letter from Nicholson to Moore requesting him to execute a new note to the purchaser of the old one. That the note being admitted, Hall did execute a new one. That after doing so, he said, referring to the letter:

"I will keep this letter, for I don't know what might happen. Jemmy Nicholson is a little rascally, and it is well enough to have it to show. But somebody would have made something out of the transaction, and I don't know why it should not be me as well as anybody else."

So also it was testified that on a friend's remarking to Nicholson that he had made an imprudent sale and that he could have turned the goods over to his creditors at cost and charges, Nicholson replied that "if Moore realized a good profit, he, Nicholson, was to have a portion." In addition, two original papers of Nicholson were produced, one a document, thus:


"At the time of my difficulties, I was informed that I might be closed up by anyone holding a small foreign claim, the

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goods sold at a sacrifice to liquidate it, and nothing left for other creditors. Sick and partly crazy with study, I knew not how to act, but threw myself on friends for advice; was advised to sell my stock and make an assignment; that M ___ would be a good person to sell to; spoke to him, he was willing, but said that I should sell them for something less than cost; offered them at New York prices, which would be ten percent less than actual cost here; he said he would consider of it; afterwards came and said I ought sell them for less. I then considered myself; he then told me he had been speaking to some of my friends, and they advised me to let them go at 30 percent below N.Y. cost, and that I had better do it, and if he made anything, he would share it with me, or perhaps he first said he would give me something handsome, but afterwards said he would share it. During last court week, he told me he was going to make something out of the goods; that he would share it with me, as it was always his intention."

The other paper was a letter, dated July 18, 1853, accompanying this document, to the attorney of the complainant, in which he stated that Moore had said that if he would sell at 30 percent below New York cost, "he would share with me the profits, as it was necessary for every man to protect himself and family."

As to the lots. No testimony was given beyond the fact that they were conveyed by Nicholson and wife June 13, 1851 -- that is to say, twenty-one days previously to the sale of the merchandise; that the deeds themselves, as given in the printed record, stated the consideration to have been five hundred and fifty dollars (not eight hundred and fifty, as stated in the answers of Nicholson and Moore); that at the time they were conveyed, Moore stated in Nicholson's presence to one Dunbar, the magistrate before whom the acknowledgment was taken, that they were all conveyed in consideration of a debt which Nicholson owed him, asking the magistrate to take notice of the facts, and that the District Court of Bastrop County, on a bill filed by Nicholson and wife against one Scott, Moore, and others (in order, apparently, to prevent Scott, an execution creditor, from selling

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the lots), had, by a decree entered by agreement of attorney, enjoined a sale of those and ordered "that Moore should make a complete title to Mrs. Nicholson for lots Nos. 62, 65, and 70, in accordance with his agreement," and that the undivided fractional half of No. 4 should be sold by the sheriff to satisfy the claim of Scott against Nicholson. About the remaining lot No. 95 the decree said nothing.

For the rest, the matter, as respected these lots, rested on the pleadings, in which the answers of Nicholson and wife, it will be remembered, stated that they were repurchased with separate money of Mrs. Nicholson, owned by her before her marriage with Nicholson, and that lot No. 95 had been resold to him and applied by him to pay one of his debts.

The court below dismissed the bill as to Mrs. Nicholson and set aside the sale of the goods as intended to defraud creditors, and therefore void.

The creditors appealed from this dismissal, and Moore from the other part of the decree.

Page 73 U. S. 310

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