When the plaintiff in a suit in equity does not waive an answer
under oath, the defendant's answer, directly responsive to the
bill, is evidence in his behalf.
The statute of Pennsylvania providing that a party in a suit in
equity may be examined as a witness by the other party as if under
cross-examination and that his evidence may be rebutted by
counter-testimony has no application to suits in equity in courts
of the United States held within the state.
The party offering in a court of the United States in
Pennsylvania a deposition taken under that statute makes the
witness his own, and is not at liberty to contend that he is not
entitled to credit.
A decision of a district court on a question of fact, affirmed
by the circuit court, will not be disturbed by this Court unless
the error is clear.
In equity. The case is stated in the opinion.
MR. JUSTICE HARLAN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
By two deeds, one dated January 22, 1876, reciting a
consideration of $10,000, and the other, dated January 26, 1876,
reciting a consideration of $18,000, and both executed,
acknowledged, and delivered to the grantees on the last-named day,
John Dippold and wife conveyed to Philip Fabel and Kate Fabel, his
wife, the latter being a daughter of the grantors, two tracts of
land in the County of Beaver, State of Pennsylvania. Both deeds
were recorded in the proper office, but not until the 16th day of
February, 1878.
On the 1st of March, 1878, John Dippold, John H. Dippold, Martin
Dippold, and Jacob H. Dippold, doing business under the name of
"John Dippold & Sons," were adjudged bankrupts
Page 132 U. S. 488
by the District Court of the United States for the Western
District of Pennsylvania. Their assignees in bankruptcy, duly
appointed and qualified, were the present appellants, who, June 13,
1879, brought this suit in the same court against the
appellees.
The bill alleged that neither of the grantees possessed means
sufficient for the purchase of these lands, and that the deeds to
them were executed with the intent and purpose of hindering,
delaying, and defrauding the creditors of John Dippold and to
prevent the lands from going to and being distributed by his
assignees in bankruptcy. It also alleged a conspiracy and
combination between Dippold and the grantees, pursuant to which the
former was to make said conveyances, in order that the lands could
be held by the grantees for the benefit of themselves and of John
Dippold, discharged from the claims of his creditors, and that the
deeds were a mere contrivance between him and them whereby the
lands
"were to be in such condition, as to the title thereof, that if
at any time the said John Dippold should become seriously and
financially embarrassed, it might be made to seem"
that he "was not the owner of said properties."
It further alleged that in January, 1876, John Dippold, as a
member of his firm, was largely engaged in business, borrowing
large sums of money down until the date of the petition in
bankruptcy, and that during all that time, he and the respondents
conspired to have it believed by the public generally and by
creditors dealing with him that he was the owner of these lands,
and by reason of such belief, creditors would be, and were, induced
to trust and confide in his financial responsibility.
The relief sought was a decree declaring the deeds null and
void, fraudulent as to creditors, and vesting no right in the
grantees, as against Dippold's creditors and assignees in
bankruptcy, and requiring Fabel and wife to release and convey
their apparent title to the assignees in bankruptcy.
The bill was sworn to, and did not waive the oath of the
defendants to their respective answers.
The answers, which were under oath, besides putting in issue
Page 132 U. S. 489
all the material allegations of the bill, averred that the
transactions evidenced by the deeds were
bona fide; that
the deeds were executed and delivered at their respective dates,
and that the consideration named in each was paid by the grantees
to Dippold in money.
The district court dismissed the bill with costs, and a similar
decree was rendered upon appeal in the circuit court.
The only error assigned is the refusal of the circuit court to
declare the deeds to Philip Fabel and his wife to be fraudulent and
void as to the creditors and assignees in bankruptcy of John
Dippold.
This case does not present any difficult question of law. Its
determination depends entirely upon the special facts and
circumstances disclosed by the evidence.
Conceding that the case was an uncommon one and that some of its
circumstances tended to excite suspicion as to the integrity of the
transaction between Dippold and his grantees, the conclusion of the
district court was that the clear weight of the evidence was on the
side of the defendants, and that the bill should be dismissed. It
was accordingly so decreed.
Dravo v. Fabel, 25 F. 116. A
similar decree was passed in the circuit court.
The answers of the defendants, being directly responsive to the
bill, are evidence in their behalf, the plaintiffs not having
waived, as they might have done, answers under oath.
Conley v.
Nailor, 118 U. S. 127,
118 U. S. 134;
Equity Rule 41, as amended.
Besides, the depositions upon which the plaintiffs must rely to
sustain the charge of fraud are those of the principal defendants,
John Dippold and Philip Fabel. These depositions were taken and
read by the plaintiffs. It is true they were taken "as under
cross-examination," pursuant to a statute of Pennsylvania which
declares that
"A party to the record of any civil proceeding in law or equity,
or a person for whose immediate benefit such proceeding is
prosecuted or defended, may be examined as if under
cross-examination at the instance of the adverse party, or any of
them, and for that purpose may be compelled, in the same manner,
and subject to the same rules for examination as any other witness,
to testify,
Page 132 U. S. 490
but the party calling for such examination shall not be
concluded thereby, but may rebut it by counter-testimony."
1 Brightly's Purdon's Digest 728. But that statute has no
application to suits in equity in the courts of the United States.
The act of Congress providing that the practice, pleadings, forms,
and modes of proceedings in civil causes in the courts of the
United States shall conform as near as may be to the practice,
pleadings, forms, and modes of proceedings existing at the time in
like causes in the courts of record of the state expressly excepts
equity and admiralty causes. 17 Stat. 197, c. 255, § 5; Rev.Stat. §
914. So that, when the plaintiffs used the depositions of Dippold
and Fabel, taken "as under cross-examination," they made those
parties their own witnesses. While the plaintiffs were not
concluded by their evidence, and might show they were mistaken, it
could not be properly contended by the plaintiffs that they were
unworthy of credit. The evidence must be given such weight as under
all the circumstances it is fairly entitled to receive. The case
comes within the ruling in
Lammers v. Nissen,
Sup.Ct.Lawyer's ed. Book 25, p. 562, where the finding of the court
of original jurisdiction upon a mere question of fact was affirmed
by the supreme court of the state. Chief Justice Waite said:
"Under such circumstances, we ought not to disturb the judgment
of the state court unless the error is clear. No less stringent
rule should be applied in cases of this kind than that which
formerly governed in admiralty appeals, when two courts had found
in the same way on a question of fact."
Without stating the evidence in detail, we content ourselves
with saying that, upon a careful review of all the circumstances
disclosed by the record, we do not feel justified in disturbing the
conclusion reached by the district and circuit courts upon mere
questions of fact.
Decree affirmed.