text:
    Goodrich against Warner.
    In an action for a malicious prosecution, the evidence introduced on the trial of that prosecution, is admissible, for the purpose of shewing reasonable and probable cause. And such evidence may be proved, by any competent witness.
    If evidence touching the present defendant’s character, constituted part of the evidence given on the prosecution, such evidence also is admissible.
    But on the trial of the action for a malicious prosecution, evidence of the defendant’s character for truth, at that time, or when the former trial was had, is not admissible, before the defendant has testified; and then only for the purpose of testing his credibility.

      Hartford,

    June, 1852.
    Where the defendant, on the trial of the action for a malicious prosecution, offered testimony to shew, that in relation to the prosecution complained of, he said, when called upon to give his deposition, he was reluctant to prosecute the plaintiff, because he feared him;—that the plaintiff had struck him, and he did not wish to incur his additional displeasure, by a prosecution; it was held, that such testimony was admissible, as part of the res gestœ, and material on the questions of malice and probable cause.
    Where it appeared, in an action for a malicious prosecution, that the plaintiff had been tried for the offence charged, before a justice of the peace, and found guilty, whereupon he appealed to the county court, and was there tried and acquitted; it was held, 1. that had there been no appeal from the first judgment, it would have been conclusive evidence of probable cause; 2 that as the result was, the conviction was not conclusive evidence of probable cause, but if the trial was fair and full, it was entitled to great consideration.
    Where the plaintiff claimed, that the defendant, for the purpose of getting up the prosecution complained of, procured a complaint to be drawn and laid before the grand-juror, which the defendant did with malice; and the prosecution was without reasonable or probable cause; it was held, 1. that if these facts were made out, the defendant was liable, although the prosecution was afterwards carried on, by the grand-juror; but 2. if, on the contrary, as the defendant claimed, he, knowing the facts, and having good cause for believing the plaintiff’s guilt, only went to the grand-juror, and fairly and honestly, and without any sinister motive, laid before him the facts with the grounds of his belief, and then left him to decide for himself according to his judgment, as to what was proper to be done, and the defendant had no particular connexion with the prosecution, more than any other citizen, except that having more knowledge and proof, he was called, by the grand-juror, to testify, he was not liable.
    In an action of slander, alleging, that the words complained of were spoken in the presence of B, it was held, that it was sufficient to prove the substance of the words alleged, and the sense in which they were spoken, without proving that they were spoken in the presence of B.

    This was an action on the case. The declaration contained several counts.
    In the first, it was alleged, that the defendant maliciously, and without reasonable or probable cause, charged the plaintiff with having feloniously set fire to, and destroyed his dwelling-house, and caused him to be arrested and carried before a magistrate for examination and trial, who, after due enquiry, adjudged, that there was no sufficient cause for holding him for further trial, and ordered him to be set at large.
    In the second count, it was alleged, that the defendant maliciously, and without probable cause, charged the plaintiff with having committed an assault and battery upon him; caused him to be arrested and carried before a magistrate; and there to become bound, with surety, for his appearance before the county court, where, upon trial before a jury, he was acquitted of the charge.
    The other counts were for words spoken, imputing to the plaintiff the crime of theft.
    In the fourth count, the words were alleged to have been spoken in the presence of Leonard Belden, and divers other good citizens.
    Upon the trial of the cause, on the general issue, before the superior court, for the county of Hartford, at the January term, 1852, the plaintiff called Horatio Gridley, Esq., the justice, before whom the plaintiff was carried, in the two cases referred to in the declaration, who stated, that the defendant, on the trial of those cases, testified, that he made complaint to the grand-juror, in both cases, and the plaintiff made no further enquiries of the witness. The defendant then requested the witness to state all the testimony given by him on those trials. To this evidence the plaintiff objected, as he had called the witness simply to prove, that the defendant made the complaints; and if the testimony given by the defendant was admissible, it must come from the defendant himself, as he was then in court, and was a competent witness. But the court admitted the evidence.
    The witness was also permitted to state the testimony, given on those trials, by one Franklin Graham, a witness, called on the part of the state, notwithstanding the plaintiff’s objection, that the evidence would be irrelevant and mere hearsay; and because Graham was then in court, and might be called to prove the testimony given by him, if admissible.
    The plaintiff, before the defendant had been called as a witness, offered William Bradford, as a witness, to testify what the character of the defendant for truth then was; and also what it was at the time of said trials. The court, upon objection made by the defendant, excluded the testimony.
    The defendant offered said Gridley, as a witness, to prove, that on said trials, the plaintiff made an unsuccessful attempt to impeach his character for truth. To the admission of this evidence the plaintiff objected; but the court admitted it; and the witness stated the testimony given on those trials, in favour of, and against, the defendant’s character.

      It appeared, upon the trial, that the defendant’s unoccupied dwelling-house had been burnt, in the night season; that one McGowan, being suspected of the offence, was arrested and committed to jail; that while there, he stated to Nathaniel H Morgan, the jailer, that he did not himself fire the house; that it was done by the plaintiff and one Cole; and that he was near by, and saw the act done. This information was communicated to the attorney for the state, who immediately sent to the defendant living in Berlin, suggesting to him the propriety of his coming to Hartford, to look into the matter. He further advised, that McGowan should make affidavit of the facts; and that, before doing it, he should consult Henry Deming, Esq., his counsel, that he might not hastily commit himself. This was done, and the affidavit made, in the presence of said Deming and Morgan. The defendant, for the purpose of shewing that he did not originate the prosecution for arson, but was in fact opposed to it, enquired of Deming, whether he urged the taking of the affidavit. To which said Deming answered, that the defendant was reluctant to prosecute the plaintiff, because he feared him; that the plaintiff had struck him; and he did not wish to incur his additional displeasure, by a prosecution. To the admission of this answer, the plaintiff objected, on the ground that it was spoken to a third person, and not in the presence of the plaintiff. But the court admitted it, for the purpose of shewing the conduct and motives of the defendant, and not as proving any facts therein stated against the plaintiff.
    It appeared in evidence, and was admitted, that on the trial before the magistrate for the assault and battery, the plaintiff was found guilty of the offence; that he appealed to the county court, and was there acquitted, by the verdict of a jury and the judgment of the court. It was claimed, by the defendant, that such conviction was conclusive evidence of probable cause; and by the plaintiff, that it was only prima facie evidence. The court instructed the jury, that the conviction was not conclusive evidence of probable cause, but if the trial was fair and full, it was entitled to great consideration.
    The plaintiff introduced evidence to prove the utterance of the words as set forth in the fourth count. The defendant claimed, that he had not proved, that they were spoken in the presence of Bacon, as alleged, and therefore, his evidence did not support that count. But the court informed the jury, that the plaintiff need only prove the substance of the words stated, and the sense in which they were spoken.
    The plaintiff offered evidence to prove, that the defendant, for the purpose of getting up said prosecution, procured the complaints mentioned in the declaration to be drawn, and laid before the grand-jurors for signature; and that, if he had done so with malice, and the prosecutions were without reasonable or probable cause, the defendant was liable, although the prosecutions were afterwards carried on by the grand-jurors. The court charged the jury, that if these facts were made out, the defendant was liable. But if, on the contrary, as he claimed, he, knowing that the plaintiff had assaulted and beaten him, not in self-defence, and having good cause for believing that the plaintiff had fired his dwelling-house, only went to the grand-jurors, and fairly and honestly, and without any sinister motives, laid before them the grounds of his knowledge and belief, and then left them to decide for themselves, according to their judgment, as to what was proper to be done; and he had no particular connexion with the prosecutions, more than any other citizen, except that having more knowledge and proof, he was called, by the grand-jurors, to testify according to his belief; he was not liable.
    The jury having returned their verdict in favour of the defendant, the plaintiff moved for a new trial; and the questions of law were reserved for the advice of this court.

      Welles and Fellowes, in support of the motion
    contended, 1. That the court admitted improper evidence.
    First, as to the evidence of Horatio Gridley, to shew what Warner testified on the trial for assault and battery. This evidence was inadmissible. The ground in other cases, upon which evidence of what the defendant testified in the criminal prosecution has been admitted, is, that he could not be a witness on the trial of an action for malicious prosecution. 1 Greenl. Ev. § 352. p. 398. Bul. N. P. 15. Johnson & ux. v. Browning, 6 Mod. 216. Burt v. Place, 4 Wend. 591. 601. But this principle has no application to the present case; because, by the late statute of Connecticut, the defendant could be a witness. The admission of illegal evidence is ground of error, although it may not appear that in fact it had any influence. Weed v. Bishop, 7 Conn. R. 128.
    The evidence of H. Gridley to prove what Franklin R. Graham testified on the trial for assault and battery, was also inadmissible; for Graham was present in court, and could have been introduced as a witness. This evidence does not conduce to shew the grounds on which Warner proceeded in the criminal prosecution. The facts themselves testified to by Graham, might conduce to shew this; but these facts could not be proved, by evidence that Graham testified to them, on the trial of the prosecution; they should have been proved, by Graham himself, just as they were proved there. 2 Greenl. Ev. § 457. p, 436, 7. Burt v. Place, 4 Wend. 591, 601. This evidence could not have been received for any other purpose, unless to shew that, although no assault was committed, as appeared by the acquittal, yet the circumstances wrere such as induced the defendant honestly to suppose an assault had been committed. Warner was the sole witness to prove the assault. The plaintiff, Goodrich, swore that he did not assault him; the facts, therefore, were all in Warner's knowledge; and the jury, in acquitting, found Warner swore falsely. He, therefore, could not have supposed the assault was made.
    Secondly, as to the evidence of Henry C. Deming, viz., that Warner said he was reluctant to prosecute Goodrich, because he feared him, and also that he had had a difficulty with him, and Goodrich had struck him, and he did not wish to incur his additional displeasure. Also, the evidence of N. H. Morgan, viz., that he had got an impression from Warner that he was reluctant to prosecute, and said, that he had had difficulty with Goodrich. This evidence of Deming and Morgan was inadmissible, because it is evidence of the declarations of the defendant in his own favour, made in the absence of the plaintiff. Watson v. Oshorne, 8 Conn. R. 363. Enos v. Tuttle, 3 Conn. R. 250. 2 Cow. & Hill, 156, 7. 585 to 606. 4 Yerger, 210.
    2. That the court rejected proper evidence, viz., that of Wm. Bradford. This evidence was admissible, because the court had admitted evidence to shew what the defendant testified, on the trial of the criminal prosecutions. The plaintiff offered to prove, that when the defendant so testified, he was not worthy of credit; yet the court received evidence of the testimony of the defendant, and refused to receive evidence to impeach it.
    3. That the charge of the court to the jury, was exceptionable.
    First, the court charged the jury, that the conviction before said Gridley, was evidence of very strong weight and power, and entitled to very great consideration. That conviction, by the appeal to the county court and acquittal, had become dead, effete and inoperative. The proceedings in the county court were further proceedings in the cause, and the acquittal was the termination of the suit. 4 Wend. 598. 6 C. & P. 446. The language of the charge is vague and indefinite, presenting to the jury no rule for their government. The acquittal in the county court, is prima facie evidence of want of probable cause, and throws the onus on the defendant. 2 Saund. Pl. & Ev. 340, 1. 6 Bing. 187. 2 B. & Ad. 845.
    Secondly, the court omitted to charge the jury in regard to the agency of Warner in the commencement of the prosecution, and his subsequent conduct and connexion with said prosecutions, but did charge the jury, that the question was, whether the defendant got up these complaints in any other light than as a citizen, &c.
    Thirdly, the court omitted to charge the jury, as requested by the plaintiff, that the conviction of the plaintiff before the magistrate, if it was obtained by the false testimony of the defendant, and was set aside on appeal, furnished no evidence of probable cause. 2 Shep. 362. 9 Shep. 212. 4 Wend. 598, 9.—overruling the case of Whiting v. Peckham, 15 Mass. R. 243. Bradley v. Bradley, 2 Fairf. 367. Woodruff v. Woodruff, Id. 475.
    Fourthly, the court omitted to charge the jury, as requested by the plaintiff, that if the plaintiff had proved express malice, and that the defendant knew all the facts connected with said prosecutions, slight evidence of the want of probable cause, was sufficient, in this action. 2 Phil. Ev. p. 256. 2 Greenl. Ev. § 455. p. 434. Nicholson v. Cashill, 4 B. & C. 21. (20 E. C. L. 269.) Bull. N. P. 12. When the facts are in the knowledge of the defendant himself, he must shew, a probable cause. Bul. N. P. 14. 14 M. & W. 131. The question of probable cause, applies to the nature of the suit, and the defendant’s knowledge and belief, &c. Wills v. Noyes, 12 Pick. 324. 326.
    Fifthly, the court omitted to charge the jury, as requested by the plaintiff, that if the words alleged to have been uttered in the presence of Leonard Belden and other good citizens, were proved to have been uttered in the presence of other persons, it was enough; and that it was not necessary to prove, that the words were uttered in the presence of said Belden. 2 Phil. Ev. p. 236.

      T. C. Perkins, (with whom was Cornwall,) contra,
    insisted, 1. That the testimony of H. Gridley was admissible. The plaintiff having enquired for a part of the evidence, on the former trial, the defendant was entitled to the whole. Either party is entitled to give in evidence all the former proceeding. And if the testimony is admissible at all, the magistrate who took the minutes, is the preferable witness. The defendant might have good ground for belief, but not be able to induce the witnesses to speak out, until sworn.
    The whole testimony, as given before the magistrate, shewed probable cause. 2 Phil. Ev. 115.
    2. That the testimony regarding the defendant’s character for truth, was properly excluded. So far as it related to the other case, it was irrelevant. As to this case, it was inadmissible, as the defendant had not testified.
    3. That the testimony of Deming and Morgan, was properly received. The whole transaction, when they were present, was clearly admissible, as shewing probable cause. The conduct of the defendant—what he then said and did about the prosecution—was admissible, as part of the res gestœ. Declarations, accompanied by acts, are, in many cases, admissible, as shewing the state of body or mind of the party, as in cases of fraud, surety, sickness, &c.

    4. That the charge was unexceptionable, as to the effect of the conviction before the justice; at any rate, the plaintiff has no reason to complain of it. It has been held, by respectable authorities, that a conviction, even though appealed from and annulled, is conclusive evidence of probable cause. Whitney v. Peckham, 15 Mass. R. 243. But that it was, in the language of the court, “entitled to great consideration,” there can be no doubt. Aside from the appeal and eventual acquittal, in this case, the conviction would, unquestionably, be conclusive evidence of probable cause. Mellor v. Baddely & al. 6 Car. & Pa. 374. (25 E. C. L. 374.) Smith v. Macdonald, 3 Esp. R. 7.

    5. That the charge was sufficiently explicit as to the utterance of the words in the presence of Belden.
    6. That as to laying the matter before the grand-juror, the charge was substantially as the plaintiff claimed.
   Waite, J.

Several questions are presented for our consideration, by the motion, in the present case. The principal and most important one, is, whether the evidence given upon the trials of the two criminal prosecutions against the plaintiff, was admissible, for the purpose of shewing reasonable and probable cause for these prosecutions. And we are all of opinion that it was. A different opinion, however, seems to have been entertained, by the supreme court of the state of New-York. Burt v. Price, 4 Wend. 591. And it has been supposed, that the evidence of the defendant alone, was admissible, because he could not be a witness in the action against him for the malicious prosecution. That reason, however, would not at present exist in this state, since, by a recent statute, parties in civil suits are made competent witnesses.

But the weight of authorities is entirely the other way, and, as we think, with great propriety. The question in issue was not solely, whether the plaintiff was in fact guilty of the crimes charged against him, but whether there existed, at the time, probable cause for the making of those charges. In order to determine that question, it would seem to be reasonable and proper to look at the evidence, as it then existed. It might be such as to leave no reasonable doubt upon any honest mind of the plaintiff’s guilt, and yet evidence might be subsequently discovered, which would entirely establish his innocence. Such cases often occur.

The evidence given in a criminal proceeding might not, in all cases, be conclusive evidence of probable cause, because the party instituting the prosecution, might know, that the evidence was untrue, or that other evidence existed which would give an entirely different aspect to the case. But still, such evidence, in our opinion, is clearly admissible, as conducing to prove the issue, and may be received in connexion with the other evidence in the case. James v. Phelps, 11 Adol. & Ellis, 483. (39 E. C. L. 150.) Delegal v. Higley, 3 Bing. N. C. 950. (32 E. C. L. 398.)

We have not been referred to any case, in this state or in England, where this precise question has been made and decided. But from what is said, by some of the elementary writers, and in some of the cases, we are led to infer, that such is the English practice.

Thus, it is said in Buller's Nisi Prius, “that the plaintiff must produce and prove a copy of the acquittal on record, and the substance of the evidence given on the indictment, is material.” P.13. And again, it is advisable for the defendant to give proof of probable cause, if he he capable of doing it; “and for this purpose, proof of the evidence given by the defendant on the indictment, is good.” P. 14.

And in Biggs v. Clay, which was an action for maliciously causing the plaintiff to be arrested on a charge of felony, and carried before magistrates, who, after hearing the statements and evidence of the parties, discharged him, no evidence of what occurred before the magistrates was given. The defendant’s counsel contended, that it was incumbent on the plaintiff to prove all that occurred before the magistrates; but the court held it to be unnecessary. 3 Nev. & Man. 464. (28 E. C. L. 407.)

It would seem from a brief report of this case, that it was optional with the plaintiff to introduce that evidence or not, at his election. He might do so, but was not bound to do it. If the plaintiff might prove the proceedings before the magistrate, to show a want of probable cause, the defendant, on his part, might do the same, to shew that such cause in fact existed.

If the evidence was admissible, then it may be proved, by any competent witnesses. The party offering it, would naturally call upon those whose attention was called to it, at the time, and who would be best able to detail it. In this case, the magistrate before whom the trials were had, was called, It was his particular duty to attend to the evidence, to weigh and consider it, and determine whether it was sufficient to justify a conviction, in the one case, and a binding over, in the other. Such a witness would be more likely to remember what was said than a mere spectator. And we see no necessity for calling the witnesses, who gave the evidence on the former trials. They would indeed be competent witnesses; and so would any other persons who heard and remembered what they said.

But these questions have recently been considered, by the supreme court of Massachusetts; and that court held, that the evidence given on the criminal trial, was admissible in the action for a malicious prosecution, for the purpose of determining whether there was probable cause for the prosecution; that it might be proved, by any witness who could testify to it; that the magistrate, before whom the criminal trial was had, as well as the witnesses who gave the testimony, was a competent witness; and that there was no necessity for calling those witnesses. Bacon v. Towne & al. 4 Cush. R. 217.

And this disposes of another question, whether the evidence given on the criminal prosecutions relative to the defendant’s character, was admissible, in the court below. For if the whole evidence could be received, then the evidence relating to the defendant’s character, was admissible as constituting a part.

But this question is materially different from another made by the plaintiff, whether testimony could be received to shew what, in fact, was the defendant’s character, both at the time of the criminal trials, and also at the time of the trial in the court below. Evidence to this effect was offered before the defendant was called as a witness.

But in neither case, was his character in issue, except for the purpose of determining the degree of credit to be given to him as a witness. He was subsequently called as a witness, in the court below; and then the evidence as to his character would have been admissible, and not previous to that time.

For the purpose of shewing the manner in which the prosecution against the plaintiff for burning the defendant’s barn, originated, and the part taken by the defendant, the evidence was introduced relative to the disclosure made by McGowan, the communication made by the state’s attorney, and the taking of the affidavit. Deming was asked, whether the defendant urged the taking of the deposition; and he answered, that the defendant said, he was reluctant to prosecute the plaintiff, because he feared him; that the plaintiff had struck him, and he did not wish to incur his additional displeasure, by a prosecution.

It is obvious, that such a disclosure, supported by affidavit, in the absence of any circumstances awakening suspicion as to the truth of it, would naturally lead to a prosecution of the plaintiff; and evidence of these facts became material, both in respect to the questions of malice and probable cause. And the declarations made by the defendant, at the time, may fairly be considered as a part of the res gestœ, as tending to shew his motives, in taking the affidavit—that he was influenced rather by the advice of others, than governed by his own feelings towards the plaintiff.

As to the effect of the conviction of the plaintiff before the magistrate, upon the charge for an assault and battery, we think, the subject was properly submitted to the jury. Had the plaintiff taken no appeal from that judgment, it would have been conclusive evidence of probable cause. Mellor v. Baddely, 6 Car. & Payne, 374. (25 E. C. L. 444.) But if, upon a full and fair trial, the evidence against the plaintiff was sufficient to satisfy the court of his guilt, that circumstance will afford strong presumptive evidence of probable cause, existing at that time, although, upon a subsequent trial, and perhaps upon other and further testimony, a jury might be of opinion, that it was not sufficient to justify a conviction.

In the charge of the court to the jury, we discover nothing erroneous. So far as the plaintiff requested the court to instruct the jury, the instruction was given in conformity with that request. What was further said, we consider unobjectionable.

And in respect to the count for slander, it was not necessary to prove the words to have been spoken in the presence of Belden. It is sufficient to prove, that they were publicly uttered.

We therefore do not advise a new trial.

In this opinion the other judges concurred.

New trial denied.


source: Caselaw Access Project

author: Hinman, J.

license: Public Domain

text:
    Warner against The Middlesex Mutual Assurance Company.
    Where the charter of a mutual insurance company, whereof the insured are members, provided, that no insurance effected on any property should be good and valid to the insured, unless he had a good and perfect unincumbered title thereto, at the time of effecting such insurance; and in an action on a policy issued under such charter, it appeared, that at the time it was effected, there was, outstanding, a title to the property insured, in a third person, by virtue of a mortgage of that property to him, previously executed, and never released; it was held, that the insured had not “a good and perfect unincumbered title,” within the meaning of the charter, and consequently, was precluded from a recovery.

      A perfect title imports one that is good, both at law and in equity.
    The object of the provision in the 13th section of said charter, was, to guard the insurers against the necessity of proving the extinguishment of incumbrances, in order to make their lien available for the purpose of paying losses.
    Where the mortgagee, in such case, declared to the plaintiff, who was about to levy an execution on the mortgaged premises, that he, the mortgagee, had no interest in the premises; it was held, 1. that if the plaintiff was thereby induced to levy his execution on the premises, the mortgagee would be estopped from making any subsequent claim to the property, as against the plaintiff, or any one claiming under him; yet 2. that a “perfect title” in the plaintiff, could not thus be created, which he could avail himself of, in a suit on the policy.
    Where the only evidence of the declaration of the mortgagee above stated, and of the fact that the plaintiff’s levy was induced thereby, was, that the mortgagee made such declaration in the presence of the plaintiff, a short time before be made his levy; it was held, that the evidence of estoppel was not sufficient to raise the question of its existence, and to require the submission of it to the jury.
    This was an action on a policy of insurance on sundry buildings in the town of Berlin. The declaration set out the policy, which was dated September 3rd, 1845, and the defendants’ charter, The 13th section of the latter was in the following words:

      Hartford,

    June, 1852.
    “Sec. 13. No insurance effected on any property shall be good and valid to the insured, unless he has a good and perfect unincumbered title thereto, at the time of effecting such insurance, or unless the true title of the insured to the same, and the incumbrances, if any, be fully disclosed and expressed in the proposals for insurance, and be also specified in the policy.
    The cause was tried, on the general issue, at Hartford, January term, 1852. The plaintiff claimed to recover for a loss by fire of the dwelling-house and barn described in the policy. He claimed title to those buildings and to the land upon which they were situated, by virtue of the levy of an execution, issued upon a judgment in his favour against Eleazer Roberts and L. H. Case; such levy being made on the 3d of June, 1843. One acre and a half of this land, being the part upon which said buildings stood, were, with the buildings thereon, conveyed, by Elishama Brandigee, in fee, to said Roberts, by a warranty deed, dated the 7th of August, 1834, and by said Roberts, immediately thereafter, mortgaged back to said Brandigee, to secure four promissory notes given for the purchase money, each for the sum of 300 dollars, payable in one, two, three and four years, with annual interest. These notes were not paid until long after they became due, and the greater proportion thereof remained unpaid until the 1st of July, 1841, when Brandigee received of Roberts a new note for the balance, which, the plaintiff claimed, was agreed to be in full payment. The latter note was never paid by Roberts; but, on the 4th of February, 1842, he mortgaged to George Page the whole of the premises so subsequently set off to him, to secure three promissory notes given by him. On the 4th of February, 1842, Roberts further mortgaged the premises to Walter Woodworth, to secure a note in his favour, for 1,131 dollars, payable on demand. On the 8th of January, 1845, Woodworth, by his deed of that date, released all his interest in the premises, to the plaintiff. In March, 1843, Page died, having given, by his will, to his daughter, Almira Roberts, all the bonds, notes and mortgages, which he held against her husband, Eleazer Roberts. On the 12th of December. 1849, the executors of Page, by their quit-claim deed of that date, released to the plaintiff their interest in the premises.

    The plaintiff also claimed, that he had proved, that shortly before the levy of said execution, he, the plaintiff, called upon said Brandigee, and enquired of him, whether he, said Brandigee, claimed any interest in said premises; to which said Brandigee replied, that he did not; which, however, was also denied by the defendants; and there was no evidence to prove, nor any claim made by the plaintiff, that if such enquiry had been made by him, or answer given by said Brandigee, any knowledge thereof had ever been communicated to the defendants, until long since the commencement of this suit.
    On the 21st of October, 1848, Elishama Brandigee and William H. Page, a son and heir of George Page, by their deed of that date, released to the plaintiff all their interest in the premises.
    The defendants claimed to the court, as matter of law, that inasmuch as the legal title of the premises, so mortgaged to said Brandigee, was, before and at the time of the levy of said execution, and at all times thereafter, outstanding in said Brandigee, until released, by his and said William H. Page’s deed of the 21st of October, 1848, to the plaintiff, he, the plaintiff bad not, either at the time of making said application, or of the issuing of said policy, or effecting of said insurance, or at any time, before said loss, within the meaning and true intent of the 13th section of their said charter, a good and perfect unincumbered title to the property insured, or purporting to be insured, by said policy; and the true title of the plaintiff to said property not having been disclosed, or expressed in his said application, or specified in said policy, that the plaintiff was not entitled to recover; and that, whether said Brandigee did, or did not, as claimed by the plaintiff, before the levy of said execution, inform the plaintiff, that he had no interest in said premises, could legally make no difference in the result in this case.
    The court charged the jury, that as to the claim made by the defendants, that the mortgage title to the said Brandigee, Woodworth and George Page, being apparently upon the records of the town of Berlin, outstanding titles and incumbrances, until long after said loss, and forming a cloud and incumbrance upon the title of the plaintiff to said property, by means whereof he had not a good and perfect unincumbered title to said property insured, or purporting to be insured, by said policy, at the time of the effecting of said insurance; this was no objection to a recovery.
    And the court, in respect to the claim of the defendants, that, as the plaintiff had never before, or at the time of the issuing of said policy, disclosed to the defendants the existence of said deeds to said Brandigee, Woodworth and George Page, or either of them, or of the state of said record title, said policy was, by reason of such omission and concealment, rendered void and ineffectual, gave no instruction, and made no charge whatever to the jury, excepting so far forth as may be embraced in the portion of the charge herein before set forth.
    And the court furthermore instructed the jury, that, although in the opinion of said court, the plaintiff was not entitled to recover, by reason of the outstanding title of said Brandigee, at the time of the effecting of said insurance, as matter of law, they might, pro forma, treat it as no objection to a recovery, if they found the other facts, as to this mortgage, for the plaintiff.
    The jury returned a verdict for the plaintiff; and the defendants moved for a new trial for a misdirection.

      Hungerford and Welles, in support of the motion,
    contended, That the plaintiff’s title was fatally defective, relying upon the express terms of the charter, sect. 13.
       They cited Wood & al. v. Hartford Fire Insurance Co. 13 Conn. R. 533. 544. and referred to Snyder v. Farmers Ins. & Loan Co. 13 Wend. 92. as illustrating the doctrine they contended for.

      T. C. Perkins, contra,
    contended, 1. That the plaintiff was not precluded from a recovery, by reason of a defect of title in the subject of insurance. The general law of insurance requires no special disclosure of title. The plaintiff unquestionably had a valid title. It was not necessary that he should detail the evidence shewing it. Brandigee's mortgage was extinguished; Woodworth had released his interest; and the executors of Page had conveyed his interest. No one else has made any claim to the property. The defendants have always held the plaintiff’s premium note. He could not avoid it, on the ground that the policy never attached.
    2. That Brandigee was estopped, by matter in pais, from claiming title to, or interest in, the premises. Brown v. Wheeler, 17 Conn. R. 345. 353.

       Much of the argument on both sides, was expended upon points, which were not decided by the court, and which, therefore, do not appear in this report of the case.

   Hinman, J.

Several questions are raised upon this motion, which we think it unnecessary to decide, as there is an objection to the plaintiff’s recovery, which must, we think, be fatal to bis case, in any aspect in which it can be presented to a court of law.

The 13th section of the defendant’s charter provides, that no insurance effected on any property, shall be good and valid to the insured, unless he has a good and perfect unincumbered title thereto, at the time of effecting such insurance; or unless the true title of the insured to the same, and the incumbrances, if any, be fully disclosed and expressed in the proposals for insurance, and be also specified in the policy. The plaintiff had knowledge of this provision of the charter. His policy refers to the charter, as annexed, and made a part of the contract; and in the proposals, made for the purpose of effecting his insurance, he also refers to the charter, and asks for a policy, according to its provisions. Besides, the company is one of those mutual insurance companies, in which the insured become members of the corporation, and, with their associates, are insurers of their own property. As a member of such a corporation, therefore, an insurer, as well as the insured, he must be deemed to have had knowledge of the charter, which alone authorized the association.

Had then the plaintiff such a title to the property insured, as is contemplated in the section referred to? We think it very clear, that he had not; and as it is not claimed, that he made any disclosure of the true state of his title, he must fail in this action. It is admitted, that before the plaintiff acquired any title to the property, the former owner mortgaged it to E. Brandigee, and that that mortgage had not been released, when this insurance was effected. It also appeared, that, if the mortgage debt to Brandigee was ever paid, it was not until after the law day had expired. Now, admitting that the mortgage debt had been paid, after the law day, still, Brandigee had, according to our decisions, a title which he could set up as a defence to an action of ejectment. Smith v. Vincent, 16 Conn. R. 1. As this title was outstanding in Brandigee, it is obvious, that the plaintiff could not have a perfect title, at the same time; for a perfect title cannot mean a title which is liable to be defeated, by any outstanding title in another.

But it is said, that Brandigee would be estopped from setting up his satisfied mortgage title, in consequence of his declaration to the plaintiff, before he levied his execution, that he claimed no interest in the premises. If it was in consequence of such a declaration by Brandigee, that the plaintiff was induced to levy his execution, no doubt Brandigee would be estopped from making any subsequent claim to the property, as against the plaintiff, or any one claiming under him. Still, the question is not, whether the plaintiff had a good title in equity to the property, but whether he had a perfect title. Now, a perfect title can mean nothing less than a title which is good, both at law and in equity; and such a title ought not to rest upon a parol estoppel. Our statute concerning lands requires all conveyances to be in writing; and we do not think a perfect title, derived from another, and not adversely, can be acquired, unless it is by writing, or matter of record. It is certain, that Brandigee once had such an incumbrance upon this property, as prevented any other person from having a perfect title to it. This incumbrance has never been removed, in any other way, than by paying his mortgage debt, after the expiration of the law day. It was claimed, that after this, he made a declaration, that he claimed no interest in the land. True, this would estop him from afterwards claiming any interest n it, if the plaintiff’s levy was made in consequence of that declaration. But the evidence was very slight, to prove, that such was the case; and the court did not put that question the jury. The defendants, therefore, upon this ground, would be entitled to a new trial; and we think it unnecessary to consider the effect of the estoppel, had it been expressly found by the jury.

It is proper, however, to say, that the evidence in favour of the estoppel is so slight as hardly to be sufficient to justify the submission of the point to the jury. All that the plaintiff offered to prove, was, that shortly before his levy, he enquired of Brandigee whether he claimed any interest in the premises; and he was informed by Brandigee, that he did not. This might have been, and probably was, intended as a mere acknowledgment that his debt was paid. If so, it had no reference to the legal title, which his mortgage deed gave him, and amounts to no more than proof of the payment of the mortgage debt, in any other way; which, we have seen, is not sufficient to destroy, at law, the title which the deed originally conveyed to him. Nor was there any other evidence that the levy was made in consequence of this declaration of Brandigee, than the mere fact, that it was made a short time before the levy was made. We have not, therefore, thought it necessary to determine definitely the effect of the estoppel claimed, being satisfied that a new trial must be granted, on the ground suggested; and believing also, that the evidence was not sufficient to raise the question of the estoppel.

This may be a hard case for the plaintiff, but we think it conclusive upon him, in a court of law; and whether he has any remedy in chancery, it is not for us now to determine. The point is not an immaterial one, when it is considered, that the company has a lien upon all the property they insure, for the purpose of paying losses that may be assessed upon its members; and it is very obvious, that, if they were seeking to make their lien available, they might meet with difficulties, in regard to the proof of the payment of the Brandigee debt, as well as of the matter of estoppel, which the plaintiff can more easily avoid. It was to guard against the necessity of being driven to resort to such proof, that the 13th section of the charter was drawn up, in such clear and unequivocal language.

We advise the superior court, that the defendants are entitled to a new trial.

In this opinion the other judges concurred.

New trial granted.


author: Storrs, J.

text:
    E. Cowles, executor of Gad Cowles, against Bacon.
    In this state, where an execution has been levied on land, and the land set off, with an apparent satisfaction of the execution, but, by reason of a mistaken or fruitless levy, the debt has not in fact been satisfied, debt on judgment or scire-facias will lie.
    Nor does it make any difference, that the creditor, when he levied his excution, had notice, from the record or otherwise, that the debtor had executed a conveyance of the land levied on, but erroneously supposed that such conveyance was fraudulently made, and was therefore, as to him, void.
    Our records of deeds often furnish but imperfect information of the true state of the title; the object of recording conveyances, being only to give notice of their existence, while their validity depends on other circumstances.
    Where the plaintiff in an action of debt on judgment, claimed, that the debtor had, before the levy of an execution issued on such judgment, on certain land, conveyed such land to a third person, and therefore the plaintiff acquired nothing by his levy; the defendant offered evidence to shew, that the conveyance so made by him, was made for the purpose of defrauding his creditors, of whom the plaintiff was one, and was therefore void; so that the plaintiff, by his levy, obtained full satisfaction of the judgment declared on; it was held, that how ungracious soever it might seem for the defendant thus to set up his own fraud, yet the evidence offered by him conduced to shew that the judgment was satisfied, and was, therefore, relevant and admissible for the purpose for which it was offered.
    By our recent statute, (Stat. 86. § 142.) allowing parties, and other persons interested in the event, to testify in civil suits, such persons, when offered as witnesses, are placed on the same ground, as to competency, as disinterested persons; their interest affecting their credibility only.
    The court, in its charge to the jury, is not bound to state the law arising upon abstract questions.
    It is a well established, just and salutary principle, that where one, by his words or actions, intentionally causes another to believe in the existence of a certain state of things, and thereby induces him to act on that belief, so as injuriously to affect his previous position, he is precluded from averring a different state of things as existing at the time.

      Hartford,

    June, 1852.
    This was an action of debt, on a judgment of the county court for the county of Hartford, rendered in March, 1821, for 206 dollars, 39 cents, damages, and 14 dollars, 40 cents, costs of suit.
    The defendant pleaded the general issue, with notice of special matter to be given in evidence, viz. that Gad Cowles, the creditor, obtained an execution on the judgment mentioned in the declaration, and had it duly levied upon the right, title and interest of the defendant in a parcel of land in Simsbury, it being his life estate therein, in right of his wife, and the same appraised and set off to him, said Gad; and that such proceedings were then had, that the entire right, title and interest of the defendant in the premises was duly set off to and vested in said Gad; that seisin and possession of the premises was delivered to him; and that neither he, nor his heirs or assigns, executors or administrators, have ever since been lawfully evicted; and that, at the time of said levy and setting-off, said Gad had notice of the nature, character and extent of the defendant’s right, title and interest in the premises, and has obtained, by virtue of said levy and proceedings, such right, title and interest of the defendant, of which the plaintiff had notice.
    The cause was tried at Hartford, January term, 1852.
    Upon the trial, the defendant proved, and it was admitted, that in the year 1821, Gad Cowles, the plaintiff’s executor, took out execution on the judgment now sued upon, and had it duly levied on the life estate of the defendant in a certain parcel of land situate in Simsbury, (referred to in the above notice;) that it was duly set off to said Gad; and that all the steps required by law were taken to perfect such levy, and transfer the title to the levying creditor.
    Upon the request of the defendant’s counsel, the court instructed the jury, that this proceeding extinguished said judgment debt, and constituted a full bar to the present action, if, at the time of the levy, the defendant was the owner of the life estate so set off; and it was agreed, that he was such owner, unless the deeds hereinafter mentioned conveyed away his title, before the levy, or were to be treated as if they did.
    There was no evidence or claim before the jury, that Gad Cowles, or any one under him, had taken or held possession of said land, after said levy, or had in fact availed himself thereof, or of any right derived therefrom, except that it was proved, and not denied, that immediately after the levy, one Phelps, under the direction of Gad Cowles, entered upon the premises, and cut and removed about one ton of grass, for which he was immediately sued in trespass, and subjected in damages.
    It appeared, that immediately after the termination of that suit, and the payment of the damages recovered, Gad Cowles ceased to set up any claim or title to the premises under the levy, or have possession thereof or benefit, therefrom, but in fact abandoned them, though he did not release them.
    The defendant claimed, that said action of trespass was brought by Lydia G. Humphrey; but the plaintiff claimed from the evidence, that it was brought by the defendant, in her name, for his own benefit, and was conducted under his authority; and the plaintiff claimed, that it was fairly inferable, that the defendant forced Gad Cowles to pay such damages for the defendant’s benefit; and thereby to drive said G. Cowles from any longer relying on the fraud of certain deeds from the defendant to L. G. Humphrey, of the 2nd of January, 1813, hereinafter called deed B, and of the 1st of November, 1816, hereinafter called deed C.
    The plaintiff, in order to remove the effect of said levy, by shewing, that, at that time, the defendant had no interest in said land, because he had previously parted with it, read to the jury the deeds B and C, and four others, covering the land levied upon.
    It was proved and agreed, that these deeds were duly executed, acknowledged and recorded, except that the defendant insisted, and offered evidence to prove, that the first deed had never been delivered, and was recorded without a delivery.
    The plaintiff insisted, that from the evidence, the jury might find it was delivered, and thereafter recorded.
    The defendant further claimed, and introduced evidence to prove, that deed B, dated the 2nd day of January, 1813, was voluntary, and as to G. Cowles, void; and was, therefore, not in the way of said levy, on another ground, viz. that the note on which said judgment was rendered, was given in the year 1819, to renew a note of an earlier date; which latter note was given upon the settlement of an earlier book account of the defendant, due said G. Cowles, which account had been commenced in 1812, and prior to giving the deed B; but how much of it had been contracted before, or was due before, if any of it, did not at all appear; nor what was the pecuniary condition of the defendant, when the deed B was given. It was, however, proved, and not denied, that he was then solvent.
    The defendant claimed, as matter of law, that, if it was voluntary and without consideration, since the debt due to said G. Cowles had its commencement before said deed, and he had levied his execution as aforesaid, the deed wras fraudulent and void, as to this judgment debt.
    This the plaintiff denied, especially as the grantee in said deed was the mother-in-law of the defendant; which latter fact: was proved and admitted.
    The court ruled this point in favour of the plaintiff, and against the defendant.
    The defendant’s counsel, in order to destroy deeds B and C, introduced the defendant to testify, and he did testify, and there was no other evidence; and from that testimony the defendant’s counsel claimed to have proved, by his oath, and so the defendant swore, that said deeds were made without consideration to said L. G. Humphrey, and -- Humphrey, (the first being mother as aforesaid, and the second being proved and admitted to be sister-in-law of the defendant,) and were given to defraud creditors of the defendant; and that the defendant was, at the time, when said deed C was given, insolvent.
    It was further proved, and not denied, that, notwithstanding said deeds B and C, the defendant ever thereafter continued in possession of the premises as before, for himself only, except that said L. G. Humphrey was, a while, in possession, after her last deed was given, and which the plaintiff insisted, from the proof, and especially from the fraudulent trust, was for her exclusive benefit, according to the directions of the defendant, the better to support said fraudulent deeds. The plaintiff insisted, that the defendant could not attack the deeds B and C, on account of said fraud, and especially, that he could not be the witness himself, to do it; but the court decided, that it might be done, and that he might testify to that effect, and avoid the deeds therefor, if that were indeed all. But the plaintiff denied, that the defendant was entitled to credit, if received as a witness; and if he was entitled to credit, then the plaintiff claimed, first, that said deeds were good in fact, and were not given to defraud creditors; in which event, the court instructed the jury, that said levy and set-off would not defeat this suit; and secondly, if the jury should be satisfied from the testimony given by the defendant, as aforesaid, said deeds C and B were fraudulent against his creditors, and void, then the plaintiff claimed, and introduced evidence, especially the trust and the acts of the defendant, that from the evidence introduced by both parties, the deeds must be held to be good as against the defendant, in this action upon said judgment, because he claimed the following facts were established, viz. that the defendant had put his title in the premises into his mother and sister, as trustees, fraudulently to keep for himself; that he did it to ward off and cheat his creditors; that he had, ever since the execution of said deeds and said levy, kept possession of the premises for himself, and for a season, by said Lydia G., and for the purpose claimed by the plaintiff, as aforesaid, and had, by his conduct and declarations, repelled the creditors, and especially said G. Cowles, by continuing and defending his trustees’ title, as bona fide; that he had advised to, and had in fact instituted, proceedings in trespass, to repel and drive off G. Cowles, after he had levied upon the premises; and that he had accomplished his object, by said action of trespass, and the other matters, and saved the land for himself, pretending the absolute title of his mother and sister was bona fide; and that G. Cowles, relying upon the goodness of the trustees’ title, was induced to forego, and did forego, his rights, under his levy, by reason of said conduct, and said declarations of the defendant.
    The court informed the jury, that if this was done, by the defendant, and especially for fifteen years after said levy, until he had now acquired title by adverse holding, and the execution title was now lost; that since the defendant was now sued for the debt itself, he cannot be permitted to say, that G. Cowles should really have fought out the title against himself and his trustees, because said title was really good for nothing; that the defendant cannot blow hot and blow cold, as he pleases. Did he induce the said creditor to believe he took nothing by his levy, because of the goodness of his mother’s and sister’s deeds? If you find these things, as claimed by the plaintiff, there is no principle of law, or of morality, which will allow the defendant to claim, that the deeds of his mother and sister were not good.
    As to the defendant in this action, the deeds of his mother and sister must, in such case, be taken as good, and the levy is no payment of the judgment. If these facts are not true, then, as to this point, the verdict should be for the defendant; for the judgment is paid by the levy.
    The defendant claimed, and it was not denied, that when the said levy was made, the two deeds, B and C, were on record; and therefore he claimed from this, and from possession by said Lydia G., G. Cowles must be held to have had knowledge; and hence the defendant claimed, that G. Cowles had knowledge of their existence and purport; and so the court ruled; and the defendant hence claimed, as matter of law, that the levy and set-off was made only to get whatever right the defendant had in the land, under the circumstances, and merely to try title; and that this was, per se, payment of the debt, even if the title was not really and truly in the defendant.
    The court held otherwise; that the whole life estate of the defendant was appraised and taken by the levy, and not a mere contingent possibility; and if, at the time, the defendant had no title, the levy and set-off amounted to no payment, and this proceeding presented no bar to a recovery in the present suit.
    There was no evidence introduced by the defendant, that G. Cowles intended to take less than a life estate.
    The defendant claimed, that the present action was not brought within a reasonable time after the levy of said execution; and therefore, the present action could not be sustained.
    The court informed the jury, that twenty years furnished presumptive evidence of payment.
    But the plaintiff claimed, as a reason of the delay, that the defendant had no property which could be attached; that he continued, at all times, insolvent, and without property and credit; and the present suit was brought as soon as any thing could be found to attach; the defendant having taken the benefit of the insolvent act, in 1831.
    The court instructed the jury, if these facts were established, there was no delay which prevented a recovery.
    The following claims made to the court, are annexed as a part of this motion, verbatim, as they were handed to the court, on the trial, by the counsel of the defendant.
    “We request the court to charge the jury, that if the execution was in due form of law, levied upon the land, and the land set off, and the execution properly returned and endorsed, satisfied, this action cannot be sustained.
    Also, that if the execution was so levied, returned and endorsed, that no action of debt on the judgment can be sustained, until a legal eviction of the levying creditor, or what is equivalent thereto, has taken place.
    Also, that, if an action of debt upon the judgment could be sustained at all, it could only be done so, after the question of title under the levy of the execution has been duly tested, by a suit.
    Also, that if the creditors knew the state of the title, as it appeared of record, and then, with such knowledge, caused the execution to be levied and returned, and endorsed, satisfied, and entered into possession of the premises, this action cannot be sustained.
    Also, that if such levy was made by the plaintiff’s direction, and execution so endorsed and returned, that an action of debt upon the judgment cannot afterwards be sustained, until the question of title under the levy has been properly tested, by suit, and trial.
    Also, that in order to test the validity of such title, it should have been so tested, within a reasonable time after such levy.
    Also, that as to the time which elapsed after the levy was completed, and the execution endorsed and returned to the court, this suit was not brought within such reasonable time.
    Also, that if said execution was levied upon said property, while Mrs. Humphreys was in the visible and open possession of the land, this was notice to the levying creditor of the title, and he cannot maintain an action of debt on judgment till the question of title under the levy had been duly tested by suit.
    Also, that if said execution was, by the direction of the creditor, levied on said property, with notice of the state of the title, and of the claim, title and possession of Mrs. Humphreys, and for the purpose of testing the validity of her title, then this suit cannot be sustained, if said levy was, in other respects, regular and valid to transfer the title of the defendant.
    That if the only title of Mrs. Humphreys was, by virtue of a fraudulent conveyance, made by the defendant, and received by her, without consideration, and with a view to protect the property from the defendant’s creditors, and thereby to defraud the creditors of the defendant, that the creditor acquired a good and valid title to the property set off, by the levy and return of his execution; and that the judgment was thereby satisfied, and no action can afterwards be maintained on the judgment.
    Also, that if the title of Mrs. Humphreys was by virtue of such fraudulent conveyance, no suit could be maintained upon the judgment, until the question of title had been duly tested, by a suit and trial, and decided against the levying creditor.
    Also, that delivery is indispensable to give effect to a deed.”
    The jury returned a verdict for the plaintiff; and the defendant moved for a new trial.

      Hungerford and Welles, in support of the motion,
    remarked in limine, that there was a perfect satisfaction of the execution, by the levy and return—a satisfaction of record. This is admitted by the plaintiff. But certain deeds are introduced, to prove, that at the time of the levy, the debtor had no title. These deeds were recorded, and Mrs. Humphrey, the grantee, was in possession. The creditor, therefore, had full notice of the state and condition of the title. They then contended, 1. That the charge of the court to the jury was incorrect in relation to the levy. This levy is not affected by the deeds B and C, admitting them to be valid to transfer the title to Mrs. Humphreys, the grantee. First, the setting off on execution is a statutory transfer to the creditor of such estate as the debtor has, without covenants— a mere quit-claim. Shaw v. Smith, 9 Yerg. 97. England v. Clark, 4 Scam. 486. The proceeding is the same as a purchase at a sheriff’s sale, and the same rules are applicable. If the title fails, the purchaser is without redress. Smith v. Painter, 5 Serg, & R. 223. Murphy v. Higginbottom, 2 Hill, (S. C.) 397. Secondly, it is a principle pervading every system of law, that an execution having been executed and returned satisfied, neither debt on judgment, nor scire-facias, will lie. Lawrence v. Pond, 17 Mass. R. 433. McLellan v. Whitney, 15 Mass. R. 137. Gorham v. Blazo, 2 Greenl. 232. The English law relative to writs of elegit strongly resembles our own. An elegit extended, is considered in law a full satisfaction, and an end of the suit. 2 Wms. Saund. 68. n. 1. And if there be a defect in the return or levy, another writ is granted, as with us. Thirdly, at any rate, an eviction is a condition precedent to a scire-facias or debt on judgment. But in this case, there has been no eviction. The proceedings in trespass were not intended or adapted to try any title. Fourthly, in this state, there are but two cases where debt on judgment or scire-facias can be sustained, after a set-off on execution; first, where there has been an imperfect or irregular levy by the officer, so that no title passes; (Fish v. Sawyer, 11 Conn. R. 545.) and secondly, where the execution has been levied on the wrong property, by mistake or through ignorance. There has no case been reported where a different doctrine has been held; and it is believed, that no lawyer has any knowledge of any case like this, in either our superior or county courts, where the creditor has acted with full knowledge, and the proceedings have been regular. Fifthly, the effect of sustaining this action must be, to permit actions of debt on judgment, however antient, if any flaw in the title can be found, although there is no warranty. Sixthly, the burden of proof is on the plaintiff, to shew that he has got no title, if he avoids the levy. Seventhly, all the analogies of the law are against sustaining an action of debt on judgment, where the creditor has acted with full notice in causing the levy.
    2. That the charge of the court was incorrect, in relation to the deed B, of 1813. The motion finds, that it did not appear what was the pecuniary condition of the defendant, when that deed was given. If the deed was voluntary, and without consideration, it was void as to this debt, which existed before the execution of this voluntary deed. The conveyance to the mother-in-law, could make no difference.
    3. That the charge was incorrect, in relation to the fraudulent conveyances B and C. The first instruction as to these deeds, that if they were good and valid, the levy and set-off would not defeat the suit, has already been discussed, under the exception as to the levy. The second instruction, that the acts of the defendant after the levy, would prevent the levy of the execution from being considered as a satisfaction, even if the deeds were fraudulent and void, was erroneous. In the first place, if the deeds were void, the creditor obtained a perfect title by the levy. Stat. 406. tit. 20. § 1. Smith v. Hubbs, 1 Fairf. 71. Phalen v. Clark, 19 Conn. R. 421. Secondly, the acts of the defendant after the levy, could not divest that title, even if he had done what was imputed to him, of which there was not, and is not, the slightest proof. Thirdly, if those acts were really committed by him, even during fifteen years after the levy, the only effect would be, to prevent him from acquiring title by possession. Fourthly, there was no trust, unless the deeds import a trust, which they clearly do not.
    4. That the court erred, in omitting to charge the jury, as requested by the defendant.

      T. C. Perkins, contra,
    as preliminary to his discussion of the questions of law arising in the case, remarked, that the defence to this suit was peculiar in its character. The execution issued on the original judgment, was levied on land, which the defendant had previously conveyed away. The plaintiff hoped to prove those deeds fraudulent. The defendant procured an action of trespass to be brought against the creditor; judgment was recovered against him; and he gave up the possession. Now, the defendant claims, that his own deeds were fraudulent; and that the plaintiff in fact obtained satisfaction; and this he attempts to prove, by his own oath. The counsel then contended, 1. That the deed B, if not fraudulent, was, at least, voluntary, and therefore void, as to the plaintiff. As the case stands, the burden of proof, as to this fact, is on the defendant. He does not shew, that the plaintiff was a creditor, at the date of this deed. Nor, that the defendant was then insolvent, or indebted. 1 Sw. Dig. 273.

      2. That the defendant could not in law impeach these deeds, especially by his own oath. The general rule is, that a party cannot protect himself, by setting up his own fraud. Potter v. Yale College, 8 Conn. R. 62. Barber v. Minturn, 1 Day, 136. But especially in this case, is the defendant estopped to do this, first, by his deed. 1 Sw. Dig. 621. Secondly, by his acts in pais. 1 Sw. Dig. 622. Brown v. Wheeler, 17 Conn. R. 353. Shelton v. Alcox, 11 Conn. R. 249. It would be of pernicious tendency were a party allowed, under such circumstances, to attack his own deeds, and contradict his own acts. And in this case, it would operate a gross fraud upon the creditor.
    3. That the levy was not per se payment. The statute makes no such provision; nor the common law. Actions to recover the debt, have been sustained, where the levy was good on the face of it. Fish v. Sawyer, 11 Conn. R. 545. 549. and cases cited.
    4. That the action of debt on judgment, will lie. Fish v. Sawyer, ubi sup. 1 Sw. Dig. 573.
    5. That the insolvency of the defendant sufficiently explains the delay, in this case.
    6. That eviction, by action of ejectment, is unnecessary.
   Storrs, J.

1. The first question presented on this motion is, whether the plaintiff’s testator is to be deemed to have obtained satisfaction of the judgment on which this action is brought, by the levy and set-off of land upon the execution issued on that judgment, if there was an entire failure of title in the defendant to that land, and said testator therefore got nothing by the levy and set-off.

It was anciently an established principle of the common law of England, that an extent upon the land of the defendant, returned and filed of record, is a full satisfaction and end of the suit; and therefore, that the plaintiff is not entitled to any further means of satisfaction, by writ, action or execution. And if the tenant by elegit, were divested of the lands so held under that writ of execution, by one having a title paramount to his own, that is, a better title than the debtor from whom he extended the lands, the rule of law, that the debt was considered satisfied by the extent, remained unchanged and unaffected, by this circumstance; and the creditor could not afterwards resort to any other writ, or have any other remedy for the portion of his debt thus deemed to be satisfied. The reason upon which this principle was adopted, was, that the creditor elects to hold the land for so many years till the debt be satisfied out of the rents and profits, and the judgment-roll shews, that it was satisfied by the elegit. This rule was so manifestly unjust, that in the thirty-second year of the reign of Henry VIII. a statute was enacted, for that reason expressed in its preamble, by which it was provided, that where the creditor is lawfully divested of the land so delivered to him on such extent, he, may have a writ of scire-facias against the defendant; and thereupon, if no sufficient cause, other than the acceptance of said land on the former writ of execution, is shewn, to bar the said suit, a new writ or writs of execution on the judgment, of the like nature and effect as the former, for the residue of the debt unsatisfied by such former execution; and the same provision is re-enacted, in similar terms, by the 8th Geo. 1. c. 25.; under which provisions the plaintiff, on the new writ of execution, has the same privileges as on the issuing of the original elegit; that is, if the plaintiff can have no fruit of it, he may sue out a scire-facias against the debtor’s goods or chattels, or a ca. sa. to take his person in satisfaction of the debt. The courts in England, early after the first of these statutes was passed, decided that the equivalent remedy of debt on judgment would lie, if the creditor thought fit, in lieu of a writ of scire-facias, which action of debt may now be brought on the unsatisfied judgment, at any time, although further writs of execution cannot be issued, without a scire-facias. (See Foster on the writ of Scire-Facias, 52. & seq.)

In this state, the ancient English common law rule has never been adopted but the practice has uniformly been in conformity with the principle, that where there is no real, but only an apparent, satisfaction of the execution issued on a judgment, by reason of a mistaken or fruitless levy on lands, debt on judgment, as well as scire-facias, may be brought to obtain satisfaction. The course of the authorities on this subject is given in the case of Fish v. Sawyer, 11 Conn. R. 545. in which we understand the court to approve and establish that practice, and to decide, that in all cases, debt on judgment lies where an execution is fruitless, by reason of a mistaken or void levy on land.

And we see no just reason for the limitation of this principle for which the defendant contends, by which it should be held not to apply to cases, where, as in the present, the plaintiff’s testator, when he caused his execution to be levied, had notice from the records, or otherwise, that the defendant had executed a conveyance of the land levied on, but erroneously supposed that such conveyance was fraudulently made, and was therefore, as to him, void. Such a mistake constitutes no just reason why the defendant should not pay the unsatisfied balance of the debt. The former neither got, nor did the defendant lose, anything, by this mistaken levy. Is the latter to go quit of his obligation, when it has not been discharged, by any mode known to the law, and therefore remains in full force, merely because the former has acted on a mistaken belief that the land levied on belonged to the defendant, and not to the person to whom he had ostensibly conveyed it? Or, is the former to be thus punished, by a forfeiture of his debt, for the benefit of his debtor, for erroneously supposing, that such conveyance was actually or constructively fraudulent, and as to himself void, and for trying to avoid it? It must, indeed, be some very stubborn rule of law which would be held to produce such an unrighteous result. Nor on this point can the grounds on which the testator formed his opinion, be examined, for the purpose of determining whether he had reasonable cause for it; or whether such opinion was really entertained, or not; because it has no bearing on this question of right and justice between these parties. It may, however, be observed, that our records of deeds often furnish to creditors of the grantors but very imperfect information of the real state of titles. They sometimes disclose the invalidity of them as to creditors, when they are only constructively fraudulent, but of course, they never do, when they are actually so. And the object of recording conveyances, is, only to give notice of them; but their validity depends on other circumstances.

This action is therefore sustainable, notwithstanding this objection.

2. The next question is, whether it was competent for the defendant to shew, that the deed from himself to Mrs. Humphreys was given for the purpose of defrauding his creditors. If, as the plaintiff claims, it was not, the whole defence to the action fails; and therefore, a decision of the questions, afterwards made on the trial, is unnecessary. The evidence offered by the defendant, was introduced, for the purpose of avoiding the effect of the conveyance from the defendant to Mrs. Humphreys, which had been produced by the plaintiff, and to shew, that that conveyance was executed under such circumstances that it was void, as against the plaintiff’s testator; and that the latter, therefore, by virtue of his levy and set-off on his execution, obtained full and legal satisfaction of the judgment declared on; which was the defence relied on, by the defendant. This being the state of the question, as it is thus presented, it should be viewed singly, and independently of the effect of the conduct and representations of the defendant after the levy and set-off, whereby the plaintiff’s testator may have been induced not to rely on those proceedings, but to treat them as ineffectual; which gives rise to a subsequent question in the case, and one to be considered hereafter.

However ungracious it may seem for the defendant thus to set up his own fraud in that conveyance, we are of opinion, that, as this question was presented, he was at liberty to do so, for the purpose stated. There cannot be a doubt, that this evidence conduced to prove, that the judgment was satisfied, and was, therefore, in its nature, relevant, for the purpose for which it was offered. It would, as a general rule, be competent for the defendant to shew, that he had not been, by conveyance or otherwise, divested of the estate, at the time of the levy and set-off, because their effect, in that case, would be to vest that estate in the creditor under the levy, and thus to produce a satisfaction of the judgment, which would constitute a good defence in this action. The question, then, is, whether the circumstance that the conveyance was executed by the defendant, with a fraudulent intention as to his creditors, including the plaintiff’s testator, creates an exception to this rule. The effect of that fraud would be, to make the conveyance voidable, by those creditors, at their election. If the testator chose to avoid it, as he did, by taking the land on his execution, as though the conveyance had not been made, such appropriation would clearly be a satisfaction of his debt, of which the defendant might avail himself, in an action on the judgment. If it were otherwise, he might be repeatedly compelled to pay the same debt. The question arising upon that conveyance, respects only the title to the land. That is a question, not between the levying creditor and the defendant, but between the former and the grantee of the defendant. The former is neither a party nor privy, but a stranger to, the deed of conveyance; nor does he claim under it; and for that reason, he is at liberty to contest it with the defendant’s grantee. The defendant has no interest in that dispute, because if the creditor should not succeed in avoiding the deed, and recovering the land, the title would remain in such grantee, to whom the title has passed by the deed, as between him and the defendant. The attempt of the defendant, therefore, to shew the deed to be fraudulent, if successful, would not defeat, but establish, the creditor’s title to the land, which the defendant should plainly be allowed to do, because if that title is established, the judgment of the creditor is satisfied, and he has no legal or just claim in this action. The plaintiff objects to this proof by the defendant, on the ground that it was a violation of the legal maxim, that no one shall take advantage of his own wrong. That maxim, however, is not to be taken in an abstract, universal sense, and has no application to this question. As applicable to a case where a person undertakes to set up his own fraud, it only means, that he shall not be allowed to acquire, through the medium of his deception, any right or interest against one who may be thus defrauded. Broom’s Legal. Maxims, pp. 209. 215. 217. The object of the rule is, to discourage dishonest practices, by depriving the perpetrator of the benefit of them. But in the present case, the defendant derives no benefit or advantage from shewing the fraud, which he offers to prove; on the contrary, the establishment of it would necessarily deprive himself of the benefit originally contemplated by it, and enure to the benefit of the plaintiff’s testator, the person who was intended to be defrauded, by re-instating him in the condition in which he was, when the fraud was attempted. To the suggestion, that it is unjust in the defendant thus to attempt to defeat this suit, it is sufficient to reply, that this is begging the question; for that depends on whether he succeeds in proving that the plaintiff’s claim is satisfied.

3. The further claim of the plaintiff, that it was not competent for the defendant to support this ground of his defence, by his own testimony, is without foundation. By our recent statute, altering the rule of the common law in regard to the competency of parties as witnesses, and allowing them to testify in civil suits, they are placed, in this respect, on the same ground, and may testify as fully, as disinterested persons. The defendant, therefore, became a witness generally, and, subject to the proper detraction from his credibility growing out of his situation, as being interested, might testify to the facts in question, like other witnesses.

4. We think, that the defendant has no reason to complain of the ruling of the court below, on his claim, that the deed of January 2, 1813, was void, as to the judgment debt declared on, on the ground that it was voluntary and without consideration. Whether the deed was void on that ground, would depend on facts as to the existence of which no evidence was adduced. It was proved, and not denied, that the defendant, when the deed was executed, was solvent; but there was no evidence to shew, whether any part of the debt embraced in the judgment was then due, or what was then the pecuniary condition of the defendant. 1 Swift’s Dig. 278. The claim made on this subject, was, therefore, merely abstract, in its character; and the court was not bound to state the law arising on facts of which there was no proof.

5. The defendant excepts to the charge below, as to the effect of his conduct and representations to the plaintiff’s testator, subsequent to the setting off of the land, by the latter, on his execution. The plaintiff claimed to have proved, that the defendant, (provided it were true, that he made the conveyances, as he claimed, for the purpose of defrauding his creditors,) after the completion of the proceedings on the execution, by a course of conduct and declarations on his part, respecting those conveyances, which were calculated, and intended by him, to induce the plaintiff’s testator to believe, that they were made honestly, and that therefore, the title of the grantees was unimpeachable and valid, had deceived and misled him, and induced him to believe, that those conveyances were in fact of the character they were thus represented to be; and that, under the influence of that belief, he had been induced to give up the rights which he had acquired, by virtue of his levy, and to abandon the land, and prevented from asserting or relying on his title thereto, until he had lost the title acquired under his execution. Those declarations and that conduct are detailed in the motion. There can be no doubt, and indeed it is not questioned, that they were, in their nature, calculated to induce such a belief and course of action, on the part of the testator. The jury were instructed, that if the facts were true, as thus claimed by the plaintiff, the defendant was estopped from claiming that those conveyances were not good. In our opinion, that charge was clearly correct. We cannot conceive of a case, which more directly comes within the well-established and most just and salutary principle, that where one, by his words or actions, intentionally causes another to believe in the existence of a certain state of things, and thereby induces him to act on that belief, so as injuriously to affect his previous position, he is concluded from averring a different state of things as existing at the time. 17 Conn. R. 345. 355. 18 Conn. R. 138. 443. The injustice of allowing the defendant, under the circumstances of the present case, to retract or deny the truth of these representations, by which he induced the testator to believe that the conveyances in question were valid, and to treat them accordingly, is too palpable to require argument.

Our opinion is, that a new trial should not be granted.

In this opinion the other judges concurred.

New trial denied.