Statement of the Case. right to disregard his unsupported or improbable professions, and construe his acts in the light which the facts and circumstances of the case throw upon his possible and probable motives, designs and interests. 2. OMISSION TO PRODUCE MATERIAL TESTIMONY, Effect of. 1. Where the testimony is clearly within reach, an assumption that the omission to produce it was the result of knowledge or fear on the part of that party to the action with whom it laid to produce the testimony, that his case could not be improved by the production thereof, is justified. 3. DECLARATONS BY ALLEGED CONFEDERATES, BEFORE PROOF OF THE COMBINATION. ADMISSION OF 1. Not error if the combination is subsequently proved. III. RESTITUTION ON SETTING ASIDE A TRANSACTION. 1. WHEN COMPLETE RESTITUTION ORDERED. a. When property has been obtained by an active, fraudulent com- 1. Co-DEFENDANTS, ADJUSTMENT OF LIABILITIES BETWEEN. IV. PLEADINGS, ADMISSION BY.-TITLE. 1. Admission of title in the plaintiff by the answer precludes defendant from insisting that the plaintiff was a mere trustee, and had no leviable interest. V. TRIAL.-OBJECTION NOT TAKEN BELOW. 1. An objection that plaintiff's remedy was at law and not in equity, if not taken below, can not be raised on appeal. Before FREEDMAN, CURTIS and SPEIR, JJ. Decided February 1, 1875. Appeal from a judgment entered upon the decision of a judge at special term. The action was in equity to set aside a sheriff's sale of real estate under execution, his subsequent deed to Joseph Kelly, the purchaser, a deed of the latter to the defendant, Emma Weeks, and a mortgage from her to the defendant, Joseph W. Frazier, and a deed from Emma Weeks to defendant Van Alstine, upon the ground of a fraudulent conspiracy to sacrifice the property and to obtain the title to and the possession of it for the defendants. Statement of the Case. This real estate was of the value of thirteen thousand dollars. The plaintiff's owned it, as is admitted, up to October, 23, 1869. Prior to that date, on February 20, 1859, judgment had been entered against the present plaintiff's by default, in an action pending in the supreme court, Westchester county, for the sum of ninety-eight dollars and thirteen cents. In that action Thomas M. Wyatt was the attorney of the judgment creditor. Execution was issued to the county of New York, and the real estate in question was levied on and sold. The property was purchased at the sheriff's sale for one hundred and eighty dollars, by Joseph Kelly, one of the defendants, on October 23, 1869. The fifteen months allowed for redemption expired on January 24, 1871. Kelly received his deed on April 17, 1871. Kelly then claimed to have conveyed the premises for six thousand dollars to the defendant Emma Weeks, on May 27, 1871. The defendant Emma Weeks claimed to have conveyed to the defendant Philip Van Alstine, for seven thousand dollars on July 18, 1871. It was also claimed that the defendant Emma Weeks made a bond and mortgage for five thousand dollars, on May 27, 1871, the day she claims to have received her deed from Kelly to the defendant, Joseph W Frazier. The mortgage was claimed to have been assigned by Frazier to one Colton B. Ward by an assignment bearing date May 27, 1871. It was claimed, too, that Ward executed an assignment to one Cotton W. Bean, bearing date August 10, 1871. Neither Ward nor Bean are parties to this action. These two assignments never appeared on record till April 8, 1873 The plaintiffs claimed that these different acts, the sheriff's sale, the conveyances and the mortgage, were merely parts of one fraud, contrived by Thomas M. Wyatt, the attorney of the judgment creditor in the judgment for ninety-eight dollars and thirteen cents, Statement of the Case. and that the fraud was so contrived for the purpose of defrauding the plaintiffs of the real estate mentioned. The court below, after making the necessary findings as to plaintiff's title, the rendition of the judgment, the filing of a transcript, the issuing of an execution, the levy and sale, and the different instruments executed to, by and between the defendants, found the following additional facts: Third. That at the time of said sheriff's sale, on October 23, 1869, the plaintiffs, who were the judgment debtors in said action, were residents of the city and county of New York, as said Wyatt well knew, and had and possessed personal property much more than sufficient to fully pay and satisfy said judgment for ninety-eight dollars and thirteen cents, but such personal property was not subject to levy under execution. That no attempt was made by said sheriff to find any personal property of said judgment debtors, wherefrom to satisfy said judgment. Fourth. That said sale by said sheriff under said execution of said premises, which were of the value of thirteen thousand dollars, for the price of one hundred and eighty dollars, was an oppressive use of process, and was made at the instance of said Wyatt in collusion with said Kelly, and with the wrongful and fraudulent intent on the part of said Wyatt and said Kelly that said property should be purchased at a grossly inadequate price without the knowledge of the plaintiff's, and to thereby deprive and defraud said plaintiffs of said premises under color of process of law. Fifth. That said defendant Kelly made said purchase at said sheriff's sale, at the instance of and in collusion with said Thomas M. Wyatt, who was the attorney of the judgment creditors in said judgment, and with the fraudulent intent on the part of said Kelly and of said Wyatt, that said premises should be sold, and that said Kelly should purchase them at said sale for a Statement of the Case. grossly inadequate price, and that the plaintiffs should be kept in ignorance of said sale, and should thereby be deprived of their right to redeem said premises, and should be deprived and defrauded of the said premises under color of a judicial sale. That said purchase by said Kelly was made, not in good faith, nor with any bona fide intent to become the purchaser thereof at the fair value thereof. Sixth. That the fair value of said premises was the sum of thirteen thousand dollars. Seventh. That at the time of said sheriff's sale, there was due upon said judgment to said judgment debtors, the sum of one hundred and two dollars and eighty-six cents, principal and interest. That the amount of fees legally chargeable by said sheriff in executing and returning said writ of execution, and in making said levy and sale thereunder, were in all not more than the sum of fifteen dollars and seventy-five cents. That there remained of said amount of one hundred and eighty dollars, which was paid by said Kelly to said sheriff as the purchase money on said sale of said premises, at least the sum of sixty-one dollars and fifty-eight cents, which of right belonged to, and by law should have been by said sheriff paid to the plaintiffs, who were the owners of said premises, by said sheriffs, from the proceeds of said sale. That said sheriff, in violation of law, retained the whole of said sum last mentioned, and willfully omitted and neglected to give any notice to said plaintiffs that said sum was due to them, or to make any attempt to pay the same, or give any such notice to said plaintiffs. That said last mentioned acts, omissions, and neglects of said sheriff, were assented to and approved by, and were done and had at the instance of said Thomas M. Wyatt. Eighth. That said defendant Emma Weeks did not, in fact, pay to said defendant Kelly the sum of six Statement of the Case. thousand dollars, nor any part thereof, as the consideration for said deed. That said deed from said Kelly to said Emma Weeks was made, delivered, and received, not in good faith, nor with any bona fide intent, thereby to grant or convey said premises to said Emma Weeks, but was made, delivered, and received, at the instance and request of said Wyatt, and in collusion with said Wyatt, Kelly and others, and with the wrongful and fraudulent intent, thereby to make it appear that said premises had been conveyed to a bona fide purchaser, for value, without notice or knowledge of the frauds aforesaid, and to deprive and defraud the plaintiffs of said premises, and to hinder and delay the plaintiffs in recovering said premises from the defendant Kelly, and with notice on the part of said Emma Weeks of the frauds aforesaid. Ninth. That said defendant Frazier did not loan or advance to said Emma Weeks the said sum of five thousand dollars, or any part thereof. That said mortgage was made and delivered by said Emma Weeks to said Frazier, and was accepted by said Frazier, not in good faith, nor with any bona fide intent thereby to secure the payment to said Frazier, or any other person, of any loan of money, in fact made, but was made, delivered, and accepted, at the instance of and in collusion with said Wyatt, Kelly and others, and with the wrongful and fraudulent intent, thereby to make it appear that said mortgage was a valid lien and incumbrance upon said premises, and to hinder and delay the plaintiffs from recovering said premises, and with notice on the part of said Frazier of the frauds aforesaid. Tenth. That said defendant, Van Alstine, did not pay to said defendant, Emma Weeks, the sum of seven thousand dollars, named in said deed from said Emma Weeks to said Van Alstine as the consideration thereof, |