Noah Haynes Swayne

“ Where he has honestly applied the property to the liabilities of the seller it may hold him excused from further responsibility. The cardinal principle in all such cases is, that the property of the debtor shall not be diverted from the payment of his debts to the injury of his creditors, by means of the fraud. [10] In the case before us, we think that Moore should be held liable for the note sold by Nicholson, and the two delivered by his wife to Moore in payment for the lots, amounting in the aggregate to $1500, with interest from the date of the sale. ”

“ Nicholson answers that when she married Nicholson she had about $1000 in money, which she lent to him, taking in lieu two notes of Moore of $500 each; some time afterwards she delivered the notes to Moore in discharge of a mortgage upon the premises, which Nicholson had given to him; that Nicholson has never repaid to her any part of the money which he borrowed; she has realized nothing from the loan but the lots in question; Nicholson in utterly insolvent; she has no hope of getting any other indemnity, and that the value of the lots does not exceed the amount of the loan. ”

“ Nicholson need no remark. She admits that she paid for the lots by delivering up to Moore notes which he had executed to Nicholson. This makes a prim a facie case against her. She adds that the notes were transferred to her by Nicholson in consideration of money she had lent to him. Of this there is no proof. It is an established rule of evidence in equity, that where an answer which is put in issue, admits a fact, and insists upon a distinct fact by way of avoidance, the fact admitted is established, but the fact insisted upon must be proved ”

“ The goods were sold on the 7th of July, 1851. After satisfying a debt due to House out of the stock, Nicholson determined, under the advice of Larkins, to assign the residue to Moore for the benefit of his creditors. Moore was applied to accordingly. He was told by Nicholson that his object was to secure his creditors, and that unless the assignment was made his entire means would be absorbed by a few of his creditors in New York, to whom he was most largely indebted, to the exclusion of his home and other debts. Moore promised to consider the subject. ”

“ The appellants, Clements and Sheldon, are judgment creditors of the defendant, James Nicholson, and filed the original and amended bills, found in the record, to set aside, upon the ground of fraud, the sale by Nicholson to the defendant, Moore, of Nicholson's entire stock of merchandise, and the conveyance by Nicholson to Moore, and by Moore to Rebecca H. Nicholson, James Nicholson's wife, of certain lots in the town of Bastrop-described in the proceedings. ”

“ The complainants waived an answer, under oath, by this defendant. Her answer is nevertheless verified by an affidavit. This was proper. It was her right so to answer, and the complainants could not deprive her of it. Such is the settled rule of equity practice where there is no regulation to the contrary. [11]
The decree of the District Court of Bastrop County is found in the record. It was entered by the agreement of counsel. It required Moore to execute to Mrs. Nicholson a full and complete title to lots 62, 65, and 70. ”

“ It is a natural, probable, and consistent story, and the slight discrepancies to be found between the narratives of the different parties, and between oral statements and written documents, is the best proof of truth. ”

“ There was a replication in substance; and if not, the objection comes too late when it comes for the first time here, the complainant never having asked below to have the bill dismissed, sec. reg.
We pass to the question of merits. The evidence of fraudulent intent appears strongly by Nicholson's own statements, orally and in writing. His letter of July 18th, 1851, and his 'memorandum,' are conclusive. Moore's participation in the fraud is proved by Hall. The decree setting it aside was right. [6]
2. As to the lots. ”

“ Freeman, 22 Id. 45; Castro v. Illies, Id. 480; Weisiger v. Chisholm, &c., Id. 670; Baldwin v. Peet, &c., Id. 708; Howerton v. Holt, 23 Id. 52; Gibson v. Hill, Id. 77; Green v. Banks, 24 Id. 508.↑ Parish, &c., v. Murphree, &c., 13 Howard, 93.↑ Brightly's Digest, 41.↑ 2 Cowper, 432.↑ Sands and others v. Codwise and others, 4 Johnson, 536; Boyd and Suydam v. Dunlap and others, 1 Johnson's Chancery, 478; Webb v. Brown and others, 3 Ohio State, 246; Sexton v. Wheaton, 1 American Lead. Cases, 50, note; Twyne's case, 1 Smith's Leading Cases, 34, notes ”