Cohn v. Mulford , 15 Cal. 50 ( 1860 )

Baldwin, J. delivered the opinion of the Court

Field, C. J. concurring.

1. Trespass against the Sheriff and his sureties for levying on certain goods as the property of Goldstein & Co., and levied on at the instance of a creditor of defendants in this process. The question made below was fraud in the sale. The defendants, to prove the fraud, offered to show that before this sale, “ about a year past, Cohn had bought Gold-stein & Co. out before, for the purpose of showing this fraud.” This evidence was rejected; and the propriety of its exclusion is the point before us. We do not see the materiality of the testimony, and no explanation was given to show its relevancy. It is not even proposed to show that this first sale was fraudulent-; and even then some authorities hold that the evidence would be inadmissible; this rule that distinct frauds may be shown being limited to such frauds' as were contemporaneous, or, at most, nearly so, and not embracing dealings so remote in point of time. The error imputed must clearly appear when that error consists in the exclusion of testimony. Upon the face of the exception it must appear, not that possibly the proof might have been relevant, but that it clearly was.

2. The other error assigned is, that the Court erred in ruling out the proffered statements of one of the vendors, made after the sale to plaintiff. What these statements were does not appear. The language of the exception is that certain statements made, etc. But these statements must be shown to have some pertinency to the matter under investigation. Nor is it shown that these statements were any part of the res gestos. Being made by one of the vendors subsequently to his sale, they were not admissible to defeat the title of his vendee, either when used as proof of fraud or of any other fact in avoidance of the deed. We do not understand the cases cited, from the seventh and eighth California, by the appellant, as going further than to hold that the admissions of a vendor, made before the consummation of the sale, are admissible to prove his own fraudulent intent. And even to this extent the authorities are very much divided. But we do not desire to disturb the rule as thus limited. But this by no means embraces the doctrine contended for. The learned editors of Phillips’ Ev. (vol. 3, pp. 616, 619, 630, notes) have collected and reviewed the authorities, and shown very clearly that such admissions are not admissible, when made after a sale, to defeat the title. (See also, Paige v. O'Neal, 12 Cal.) We think it would be a very dangerous thing to hold the rule to the extent here insisted on. It would make all titles insecure by mere hearsay testimony, coming from a party in no way interested at the time of the admission, and in no way excluded from testifying as a witness. Judgment affirmed.