Weeden against Hawes and others, 10 Conn. 50

Daggett, Ch. J. This court now is called upon to decide a question of fact- The plaintiff insists, that if the sum of 1395 dollars, 82 cents, was included in the 5892 dollars, 3 cents, with a view to augment the demands of Joseph Halves on Joseph Hawes jr., and thereby to cover the property from his other creditors, then the deed was fraudulent and void. On the other hand, it is admitted, that if this sum was inserted by mistake merely, supposing that it was due, and had not been paid, then the deed would be good, and ought to stand as a security for what was actually due.

In this view of the case, it is a mere question of fact ; and such a question cannot be decided by this court. Whether the sum was included with a fraudulent intent, is a sheer question of fact; and this court being a court of errors, and having no constitutional powers to decide a question of fact, cannot determine this point. The cause must, therefore, be remanded to the superior court, for a decision of the question, whether that sum was included in the mortgage fraudulently.

This must be the course, unless the proposition is sustainable, that the mortgage shall stand for a security for such sum as is bona fide due, though the other sum was included with an intent to deceive and defraud his creditors. This proposition cannot be supported. A deed fraudulent in fact is absolutely void ; otherwise of a deed obtained under inequitable or suspicious circumstances. Where a statute makes a deed void, for any thing done against law, if any part of the consideration is against law, the deed is entirely void.

If the deed in question might stand as a security for what was justly due from the mortgagor to the mortgagee, then it • might be protected, if one half or three quarters of the sum was included with an intent to defraud creditors. Such a doctrine would be opposed to the letter and spirit of the statute against fraudulent conveyances. The cause, then, must be remanded, for the purpose of ascertaining how the sum of 1395 dollars, 82 cents, became included in the mortgage. There is another point to be considered and disposed of.

The books of Joseph Hawes jr., kept at the Willimantic manufactory, in which was his account against Joseph Hawes, was admitted, by the court, as evidence of the amount of indebtedness, thereby to justify the mortgage. This was offered and admitted in connection with the testimony of Coggswell, the book-keeper, to prove, that the entries of debt and credit were just and regular. I can perceive no valid objection to this testimony. It is the usual testimony in support of a book of a party, and is doubtless admissible, subject to any testimony to show its falsity or errors.

This court went much further in the case of Dwight v. Brown, 9 Conn. Rep. 83. The testimony of the book-keeper, with the book, was properly admitted. I would, then, advise the superior court, that the facts found are not sufficient to found a decree upon ; and the cause must be remanded to the superior court, to be proceeded with according to law. The other Judges were of the same opinion, except Church, J., who was not present when the case was decided. Evidence admissible. Cause remanded.