
    James Salmon v. John Orser, sheriff.
    In an action, by a vendee of personal property, against the sheriff, who has taken the property under execution against the vendor, it is sufficient for the plaintiff to prove his purchase, the payment of the consideration, delivery to him, and his actual and continued possession down to the time of the levy. He is not bound to go further, and prove affirmatively that the sale was made in good faith, and without an intent to defraud creditors of the vendor.
    The defendant, in such case, if he defend on an allegation of a fraudulent sale, has the burden of proof.
    It is where the possession is not changed, or, if the vendee has taken possession, where the vendee’s possession has not been continued, that the statute casts upon him the burden of showing that the sale was in good faith, and without any intent to defraud, &c.
    Declarations of the vendor, made to his wife prior to the sale, and forming no part of the negotiations with the vendee, are not competent evidence to show, in favor of such vendee, that the intention of the vendor was not fraudulent.
    (Before Hofemau, Slosson, and Woodruff, J.J.)
    April, 1856.
    The action was brought to recover damages for the wrongful seizure, taking, and carrying away by the defendant of three coaches belonging to the plaintiff. Judgment was demanded for $1,350, besides costs.
    
      • The answer denied the possession and ownership of the plaintiff, and justified the seizure under an execution against the goods of one Charles Hannan, who, it was alleged, was the true owner of the property.
    The cause was tried before Campbell, J., and a jury, in February, 1855.
    The plaintiff proved, and read in evidence,- a bill of sale, dated the 1st of October, 1858, by which Charles Hannan, in consideration of the sum of $2,000, bargained and sold to the plaintiff four coaches—three of which were those for which the action was brought-^-several wagons, sets of harness, and spans of horses. All this property was connected with a livery stable, which had been occupied and carried on by Hannan, and the lease of which it was also proved, was assigned to the plaintiff. Evidence was also given on the part of the plaintiff, tending to show the payment of the consideration mentioned in the bill of sale, and that the plaintiff had taken immediate possession of the stable and property sold; had from that time kept the stable in his own name, and was in the actual possession of the coaches in question when they were taken and carried away by the defendant.
    Among other witnesses, the wife of Hannan was examined on behalf of the plaintiff, to prove the good faith of the sale made by her husband, and the following, among other questions, was put to her:—
    “Did you hear any thing said before you heard the sale talked of?”
    The counsel for the defendant objected to the question; the objection was overruled, and the counsel excepted. The witness said, in answer to the question, that she heard her husband say, that he must sell out to her brother, (the plaintiff,) as he could not pay him the money that had been loaned to him.
    The witness had before testified that she was present when the plaintiff loaned to her husband $2,000 in gold.
    On the part of the defendant, the judgment and execution under which he justified, were proved, and the seizure under them, and evidence was given tending to show, that the sale to the plaintiff was colorable, and that the possession had, in fact, never been changed, but was retained by Hannan as owner.
    When the evidence was closed, and the counsel had summed up on the questions of fact—
    
      The Judge charged the jury, that the question for them to consider was, whether the plaintiff was a bond fide purchaser of the property levied upon by the sheriff, a,nd whether, at the time of such purchase, he went into possession, and continued in such possession as sole and exclusive owner. If he was such purchaser, and went into possession as sole owner, and such purchase was made in good faith, then the plaintiff is entitled to your verdict. If the purchase was not made in good faith—was a mere pretence, or if the plaintiff did not go into exclusive possession—if, in point of fact, his brother-in-law Hannan still remained in virtual possession—then defendant is entitled to your verdict. The counsel for the defendant requested the Judge to charge the jury—
    
      First. That they might infer from the relation of the parties and other facts proved, that Salmon had notice of the debt due to Rogers and Kilham, at the time of the alleged sale from Salmon to Hannan.
    The Judge refused so to charge, to which refusal the counsel for the defendant duly excepted, and then requested the Judge to charge—
    
      Second. That the sale in controversy was, in law, fraudulent and void as to existing creditors, without regard to the motives of the parties thereto in a moral sense, if such sale was not accompanied by an immediate delivery of the property sold to the vendee, and followed by an actual and continued change of possession of such property
    The Judge refused so to charge, except as he had already charged, and the counsel for the defendant thereupon duly excepted to such refusal, and then requested the Judge to charge—
    
      Third. That there was no evidence to go to the jury of an immediate delivery of the property sold by the vendor to the vendee.
    The Judge refused so to charge, and the counsel for the defendant duly excepted to such refusal, and requested-the Judge to charge—
    
      Fourth. That unless the jury find that the plaintiff has proved that the sale was made in good faith, and without an intent to defraud creditors, they must render a verdict for the defendant, even though there was an immediate delivery of the property sold to the vendee, followed by an actual and continued change of possession ; and that such sale and delivery would, in that event, be immaterial, except so far as they might affect the question of good faith and intent to defraud creditors.
    The Judge refused so to charge, except as he had already charged, to which refusal the counsel for the defendant duly excepted, and requested the Judge to charge the jury—•
    
      Fifth. That if the jury find that the possession from and after the sale of the property sold was joint between Hannan and Salmon, that will not avoid the presumption of fraud in law, and the sale will be void.
    The Judge charged, that such a joint possession would not be sufficient to satisfy the statute, but refused to charge as to the rest of the request, except as he had already charged, to which refusal the counsel for the defendant duly excepted.
    The jury found a verdict for the plaintiff, and the presiding justice directed that time be given the defendant to maize a case containing the testimony and exceptions, to be heard in the first instance at the General Term of this court.
    The cause was now heard upon the case made by the defendant.
    
      A. J. Vanderpoel, for the defendant,
    insisted that there ought to be a new trial.
    The question put to the wife of Hannan, which was objected to, ought not to have been allowed. The evidence it called for was no part of the res gesta, it was mere hearsay. The Judge, also, erred in refusing to charge, as requested, and particularly in refusing to- charge in conformity to the fifth request. He cited, on the first point, 14 John. 204; 1 Barb. Ch. 105; 4 Comst. 519; 7 Hill, 361; 1 Hill, 612; and upon the second, 4 Denio, 271; 4 Hill, 291; 3 Sand. S. C. R. 69; 3 Comst. 310.
    
      A. R. Dyett, for the plaintiff,
    contended that the declarations of Hannan, testified to by his wife, were part of the res gesta, as showing his motives in the transaction, and were, therefore, properly admitted in evidence, and he insisted that the charge of the Judge was, in all respects, correct, and covered all the points that could properly be submitted to the jury. He cited 1 Duer, 424; 1 Kern. 61; id,. 416; 3 Sand. 230; 3 Selden, 453; 5 Wend. 209.
   By the Court. Woodruff, J

1. The charge of the Judge on the trial is in substantial conformity with the requests made by the defendant’s counsel, except in one particular, viz., the fourth request. “ That unless the jury find that the plaintiff has proved that the sale was made in good faith and without an intent to defraud creditors, they must render a verdict for the defendant, even though there was an immediate delivery of the property, followed by an actual and continued change of possession.”

The Judge very properly refused so to charge. The counsel proposed to impose upon the plaintiff the same burden of proof where he purchased and took and retained actual and continued possession, as the statute casts upon him when the possession is not changed or when the change is not continued. The law does not warrant any such rule. The plaintiff, being shown an actual purchaser, a payment of the consideration, and a taking and a keeping of the possession of the property, the burden of proof is cast on the defendant if he seeks to impeach the title on the ground of fraud. He must show that the transaction is fraudulent and with intent to hinder, delay, or defraud creditors. The case of Randall v. Parker, (3 Sandf. 69,) does not, therefore, apply to this case. What is said there of the duty of the plaintiff to show the absence of an intent to defraud, is applied only to a case in which the possession is not changed, &c.

2. We think the questions of fact, which the Judge submitted to the jury, were properly submitted. There was evidence for their consideration.

3. As to all of the exceptions to the ruling of the Judge, admit ting or rejecting evidence, we find one only which we think was erroneous, or that furnishes any ground for setting aside the verdict. That is the question put to the wife of the judgment debtor (Hannan, the vendor of the property in question). She had testified that she knew of the plaintiff's lending her husband $2,000— which $2,000 was alleged to be the consideration of the subsequent sale. She had stated that she was not present at the sale, and did not know of it until they (plaintiff and her husband) told her. That she did not recollect when it was, but should think it was in the fall after the money was loaned. The plaintiff’s counsel then put the following question: “Did you hear any thing said before you heard the sale talked of?” This question was objected to by the defendant’s counsel. The objection was overruled, and the defendant excepted. If we had not before us the answer of the witness, which throws some light upon the object oí the question, and what the plaintiff’s counsel intended to elicit, we should feel surprise that so loose and general a call, for mere hearsay evidence, should have been even suggested by counsel. It is true that the question does not expressly call for what was said, but it was manifestly understood to embrace that, and the objection was pointed to that. The witness so understood it, and so answered it. The question does not limit the inquiry to what was said by the plaintiff, or Hannan (the husband) or by the defendant—but, for aught that the question discloses, may embrace all the neighborhood. Nor does it call only for what was said in the presence of the plaintiff. But the answer of the witness points the question—she replied, I heard my husband say that he must sell out to my brother, (the plaintiff,) because he could not pay him the money.”

The answer makes apparent that the object was that which the respondent’s counsel, on the argument, insists made it proper, viz.: to show the intent of her husband in making the sale.

The end to be gained was, no doubt, material, but the means were not admissible. The evidence was mere hearsay, on a subject which could, and ought to be, proved by the husband himself. He could not, by such declarations to third persons, make evidence for the plaintiff. His declarations, (forming no part of the res gesta; the act of sale,) were not evidence of the facts declared, and no more evidence of an intent than of any other fact. A witness may be impeached by proof of declarations, out of court, inconsistent with his testimony, and there are, perhaps, cases in which an impeached witness may be shown to have told the same story out of court, which he has narrated under oath.. But the declaration of a third party, out of court, not examined as a witness, is not evidence of the fact stated in such declaration. It is mere hearsay, whether stated to his wife, or any one else. We find no ground upon which we can sustain the admission of this evidence. We regret to disturb the verdict, upon this ground, for we think the verdict would have been the same had not this test timony been received. The evidence is quite sufficient to warrant such a verdict. But we cannot say that this testimony may not have influenced the jury. The ruling, by which it was permitted to be given, in effect, informed the jury that Hannan’s declaration was proper to be considered, in determining whether the sale was in good faith, and for value, and we cannot say that they did not place reliance upon it.

Upon this sole ground, then, we feel constrained to set aside the verdict, and order a new trial, costs to abide the event.  