Olmsted against Hoyt and others; Hoyt and others against Olmsted:, 11 Conn. 376

Church, J. This case comes before us, as well upon a motion in error as upon a motion for new trial. Upon the questions raised by the motion for new trial, we suggest no opinion, inasmuch as we concur, unanimously, in the result, that for the second cause of error assigned in the motion in error, the judgment of the superior court must be reversed. The material question of fact under consideration, by the committee in chancery, was, whether the deed from Harvey Hickok to E. M. Hurlbut, was fraudulent; the defendants, by their answer, averring the fraud, and the plaintiff denying it.

To support the deed, evidence was introduced, attempting to prove, that it was executed in consideration of more than 700 dollars in cash, loaned by Hurlbut to Hickok, and money paid for him.

To contradict this evidence, the defendants offered to prove, that at the time of such pretended loan and payment, Hurlbut, was a man of little or no property ; that he did not possess an estate, either real or personal, unincumbered, of the value of 300 dollars ; and that such estate as he had purchased, was incumbered by mortgage, for the whole amount of the purchase money ; and therefore, he could not probably have made such pretended loan and payment of money.

This evidence was rejected, by the committee; and upon remonstrance, that decision was sanctioned, by the superior court; and this is in the motion in error assigned as the second ground or cause of error. The decision of this point in the court below, and now to be reviewed, it is understood, was governed, by a former decision of this court, in the case of Cook v. Swan, 5 Conn.

Rep. 141. in which it was holden, that where the question was, whether a mortgage deed given to secure advancements of money, was fraudulent, as against creditors, after evidence-of such advancements by the mortgagee, that the plaintiff could not be permitted to prove, that the mortgagee, at the time of the transaction, was a young man, and had recently commenced business, destitute of capital, and hence, was not of ability to make such advancements. The essence of fraud consists chiefly in motive, and is seldom reached through the ordinary channels of direct and positive testimony.

The nature of the evidence must be adapted to the character of the facts or transaction it is intended to establish ; and therefore the law, in many cases, dispenses with the necessity of positive proof, and permits the introduction of circumstantial, presumptive or persuasive evidence. Where absolute certainty is unattainable, the degrees of probability are much varied, and much latitude must be allowed to the judgment in the application of circumstances.

And evidence ought never to be adjudged irrelevant, which, according to ordinary experience, and the common observation of the motives and conduct of men, may fairly be supposed to influence and persuade candid and intelligent minds. The avenues to truth through the medium of human testimony, are, and will ever be, by reason of human imperfection, in a considerable degree, obstructed ; and it does not. become courts of justice, to add artificial impediments, from the apprehension that falsehood may possibly enter.

Such a course, it is believed, will exclude much more of truth than of error. in the present case, the enquiry was, whether the plaintiff had loaned and advanced 700 dollars, as the consideration of the deed in question. Who, in investigating this fact, would not instinctively enquire, what were his means of doing this ? And who, upon being informed, that no adequate means had ever been discovered, would not, as instinctively doubt the fact?

In a word, the question was, whether it would conduce, in any degree, to prove, that the advancements claimed were not made, to show, that the plaintiff had not the power of making them? We cannot, upon principle, doubt the admissibility of this evidence. Nor are we satisfied with the reasons announced for the different opinion expressed by this court, in the case of Cook v. Swan. The late Chief Justice Hosmer, in giving the reasons of the court, in that case, says : 1. That such an enquiry would be remote.

The evidence offered, it is conceded, did not, primarily and directly, prove a fraud, as a distinct fact; but it very reasonably conduced to prove a fact quite inconsistent with the claim of a bona fide consideration. The evidence offered was presumptive, and no more remote, that we can discover, than all other presumptive evidence. 1 Stark. Ev. 17. 2. That the enquiry would be interminable. By which, we suppose, is meant, that it would lead to inconvenient lengths. Enquiries of the same character have been very frequent, as well as indispensable, in judicial investigations, without incurring this objection.

The enquiry was simply in regard to the pecuniary circumstances and ability of a party; certainly, a very common enquiry. 3. That the enquiry proposed is the basis only of conjecture, and leading to no correct inference. All presumptive evidence is, in some degree, the basis of conjecture, and does not always lead to a certainly correct inference ; if it did, it would be rather positive evidence than presumptive. The reasoning of the learned judge would seem to go to the length of excluding presumptive evidence altogether.

The truth is, if the evidence offered did not lead to a certain inference or result, it led to one very legitimate and persuasive, and such as naturally would and ought to influence a reasonable mind. The law considers the investigations of fraud to be of a peculiar character: and to aid such investigations, has prescribed certain badges or proofs of fraud, all founded upon the principles to which we have before referred, and which are particularly enumerated, by Lord Coke, in Twyne's case, 3 Rep. 80. and have become elementary.

These are considered badges of fraud, because the common experience of mankind shows, that they seldom exist in connexion with open, fair and honest transactions. And yet they may so exist, and frequently have so existed, and therefore, do not certainly lead to a correct inference. The judge proceeds to say, that “ the ways of getting, as well as of losing property, are infinitebut yet he does not show how this admitted truth enters into the merits of the question he is discussing. The question was not, how the mortgagee had or could have acquired property; but whether, at a given time, he had any.

Evidence of the character of this in question, we think, must frequently have been offered and received in the courts of England and this country; and yet with the exception of the case of Cook v. Swan, we do not find it objected to. It was admitted, without objection, and considered as very important, by the supreme court of the state of New-York, in the case of Jackson d. Hooker v. Mather, 7 Cowen 301. We feel ourselves compelled, therefore, to dissent from the decision of this court in the case of Cook v.

Swan, on the point here considered ; and we do this with less reluctance, because we do not thereby introduce any new rule affecting the rights either of person or property. The judgment of the superior court must be reversed. In this opinion the other Judges concurred. Judgment to be reversed.