Bell v. Throop
Bell v. Throop
Opinion of the Court
The question of fraud and collusion between Throop and Tobias to hinder and delay the creditors of the latter, was submitted to the jury under proper instructions. The entry of the amicable action of ejectment was not evidence of fraud. As the learned judge instructed the jury, it is an every-day transaction. If we concede that Tobias intended a fraud, it would not affect Dr. Throop unless the knowledge of it was brought home to him. In other words, he must have participated in it. The mere acts or declarations of Tobias, after the transaction, would not be sufficient to connect Throop with the alleged fraud. Hence it was not error to reject the petition of Tobias for opening the judgment. At most, it was his ex parte declarations. Nor was it error to reject the deposition of Mrs. Tobias. It was offered to show her husband’s turpitude. While he might be willing to admit it, his wife was not a competent witness to prove it. She was testifying directly against her husband.
Judgment affirmed.
Reference
- Full Case Name
- ZACHARIAH BELL v. B. H. THROOP
- Cited By
- 12 cases
- Status
- Published
- Syllabus
- (a) On April 10, 1876, Fisher obtained a judgment against Tobias, then in possession of real estate as a purchaser from Throop under articles of agreement. On April 17th, judgment in ejectment for unpaid purchase money was confessed to Throop, and on May 2d, possession given him on habere facias: 1. In ejectment by a purchaser at a subsequent sheriff’s sale on the Fisher judgment, the confession of the judgment in ejectment to Throop was not evidence of fraud on the creditors of Tobias, in the absence of evidence that Throop had knowledge of the intention of Tobias to defraud. 2. The testimony of the wife of Tobias, offered to corroborate that of her husband, to the effect that the judgment in ejectment was confessed because his creditors were crowding him, was inadmissible, being offered to show the husband’s turpitude, for which she was incompetent, 3. A petition of Tobias for an order to open the Fisher judgment and to stay the writ issued thereon, was irrelevant, as the mere acts and declarations of Tobias, after the transaction, were insufficient to connect Throop with the alleged fraud upon the creditors of Tobias.