
    Goodwin, Appellant, vs. Snyder, Respondent.
    
      December 10, 1889
    
    
      January 7, 1890.
    
    
      Fraudulent conveyance: Attachment: Evidence: Res adjudicata.
    In an action against a sheriff for the conversion of peatonal property taken by him under an attachment against the property of the plaintiff’s vendor, and afterwards sold on execution, a judgment in the attachment suit, sustaining the attachment on the ground that the sale to the plaintiff was fraudulent, is not admissible in evidence, on the question of the validity of the sale to the plaintiff, to show the fraud on the part of his vendor.
    APPEAL from the Circuit Court for Waukesha County.
    The facts are stated in the opinion. There was a verdict for the defendant, and from the judgment entered thereon the plaintiff appeals.
    For the appellant there was a brief by Paries da Robinson,> and oral argument ,by Warham Paries.
    
    For the respondent there was a brief by Shepard da Shepard, attorneys, and Edward W. Frost, of counsel, and oral argument by Mr. Frost.
    
   ObtoN, J.

The facts necessary to this decision are substantially as follows: One George P. Goodwin owned a stock of goods and merchandise, and sold the same to the plaintiff, his brother, for the nominal value thereof, and took bis notes therefor, and gave him a bill of sale, and be was in possession under said sale when the defendant, as sheriff, seized the same by virtue of writs of attachment in his hands against the said George P. Goodwin, in favor of certain creditors of his, and afterwards sold the same, after judgment, under executions issued thereon; and this action is for the value of said goods so taken. The defendant justified the taking under said attachments, and the sale under said executions, alleging that said sale by said George P. Good win was fraudulent and void as to his creditors, having been made with the intent to hinder, delay, and defraud them. This was the sole issue, and there was much testimony tending to support it.

On the trial the defendant offered in evidence the full records in the attachment cases in which the goods were taken, including the affidavits of the plaintiffs therein that the said George P. Goodwin, the defendant, had conveyed and disposed of his property with intent to hinder and delay his creditors, and the finding and judgment sustaining said attachments on the trial of the issue on the traverse of said affidavits. These records, on objection of the plaintiff, were received in evidence to prove the fraud on the part of the plaintiff’s vendor. The court not only admitted the records for such purpose, but instructed the jury as follows: “Now, that you may understand the precise issue,the case has already been tried involving the question whether, on the part of George P. Goodwin, this transaction was for the purpose of hindering or dekiying his creditors. That was tried, so far as he was concerned, and decided by the court that it was fraudulent as to him; and that judgment, not having been reversed or appealed from, stands in the case, so far as George is concerned, as a valid judgment, and the transaction was fraudulent and void so far as he was concerned.”

The admission of this evidence, so impressed upon the jury, was clearly erroneous. To impeach this sale for fraud, both the vendor’s fraudulent intent and the vendee’s knowledge of it must be shown. Hopkins v. Langton, 30 Wis. 379. The issue in this case involves both of these propositions, and both must be proved to impeach the sale. Admitting this récord as conclusive proof that the first proposition is true, leaves the other proposition only to be proved. The first cannot be questioned. This took away more than half of the defendant’s burden of proof. It left him. to prove only that the plaintiff knew that his vendor intended to defraud. The vendor’s fraud was proved in these other cases in which the plaintiff was not a party, and yet he is held bound by the adjudication. The plaintiff was not a party in those cases, and could not be. Howitt v. Blodgett, 61 Wis. 376. George P. Goodwin, the defendant in those cases, is not a party to this. Having assumed that George intended to defraud, and held that no proof was necessary of that fact because it was already established in the attachment cases, the jury might easily presume, without other proof, that the plaintiff knew it.

It was incumbent upon the plaintiff, and his right, in defense of his property in this suit, to prove that the said George P. Goodwin did not intend to defraud his creditors by this sale to him, but this right is denied him. He can show nothing to impeach that judgment. That question is disposed of and is out of the case; and the plaintiff is bound by an adjudication to which he was not a party. The plaintiff has never had his day in court on that most important question in his case, and his right of trial of it is denied him. To make such record of a former adjudication evidence in a subsequent case, the subject matter must not only be the same, but the parties must be the same. But here the subject matter, even, is not the same. The issue here is the validity of that sale. In the former case it was merely the intent to defraud by the vendor, in order to sustain an attachment. The. questions are materially different. Miller v. McNair, 65 Wis. 454; Oleson v. Merrihew, 45 Wis. 397; Saveland v. Green, 36 Wis. 612; Cecil v. Cecil, 81 Am. Dec. 628; Hill v. Stevenson, 63 Me. 364; Hawes v. Waltham, 18 Pick. 451; Gelpeke v. M.& H. R. Co. 11 Wis. 456.

The question is too familiar to require much authority. The error was material, and affected the rights of the plaintiff in the case, and cannot be disregarded.

There were other exceptions, which may not-be taken on another trial, and will therefore not be considered.

By the Qourt.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.  