In subdivision 9 of the findings of fact of the trial court, there is this statement: "I find that the judgment in cause 2099 was not procured by the defendant Tom Peoples through fraud." In the opinion of this court it was stated: "We adopt all of the conclusions of fact as found by the trial court, except that portion of facts found in subdivision No. 10." Then the opinion proceeds to state the facts as found by this court. This statement in the opinion will be corrected so as to embrace a finding to the effect that so much of subdivision 9 of the findings of the trial court as quoted is not sustained by the record. The evidence shows that Tom Peoples, together with Eaton, the creditor of the plaintiff, were both parties to the fraud of Eaton, by causing to be transferred to Peoples the land in controversy, and that the judgment in favor of Peoples in cause No. 2099 was based upon this fraudulent transaction.
As appears from the original opinion filed in this case, this court rested the disposition of this case upon the fact that the evidence did not *Page 241 show that the plaintiff exercised any diligence to procure the testimony of Eaton and Peoples, in order to establish the fraud complained of in the trial of cause No. 2099. We are still of the opinion that we were correct in this conclusion. Appellant in his motion for rehearing assails this position of the court, principally upon the ground that he was not required to exercise diligence to procure the testimony of Eaton and Peoples, his adversaries, because it could not be supposed that they would have testified adversely to their interest; and that they could not have been compelled to do so, because it would have exposed them to a criminal prosecution.
There is an apparent inconsistency between this contention of appellant and that asserted in his briefs filed in this case. As indicated on page 32 of his brief, and in other portions of it, one of the principal grounds of his complaint urged against the judgment rendered in cause No. 2099 is that Eaton and Peoples concealed from him the fraud perpetrated by them in the execution of the instrument by virtue of which Peoples acquired title. The contention amounts to this: That under the facts and circumstances, it was a fraud on the part of Eaton and Peoples to conceal the vice in the title of Peoples. This necessarily implies that they rested under the duty to appellant to discover and make known to him the facts and circumstances that would invalidate their title; which the appellant contends consisted in the intent of Peoples and Eaton to defraud the appellant and other creditors of Eaton, by executing the conveyance to Peoples, transferring the land in question. If it could be true that the duty rested upon them to voluntarily furnish this information to appellant, they could have been required, as witnesses, to have divulged the facts. The duty in the one case to tell the truth was no greater than in the other, and they could have been compelled to do that which the law would charge them with the duty of voluntarily doing.
Article 2271, Revised Statutes, provides that "either party to a suit may examine the opposing party as a witness, and shall have the same process to compel his attendance as in case of any other witnesses. His examination shall be conducted and his testimony shall be received under the same rules applicable to other witnesses."
Article 2293 is to the effect that either party may examine the opposing party upon interrogatories filed in the cause, and that such examination shall be conducted and his testimony received according to the same rules which apply in the case of other witnesses, subject to the provisions of other articles upon this subject.
Articles 2294 and 2295 provide that the answers to such interrogatories may be taken without the necessity of giving notice of the filing of the interrogatories, and no objection shall be made thereto because they are leading in character.
Article 2296 states that the party, in answer to any question propounded, may state any matter connected with the case pertinent to the *Page 242 issue to be tried; and provides also, that the adverse party may contradict the answers by other competent testimony, in the same manner as he might contradict the testimony of any other witness.
Article 2297 provides that if the party interrogated refuses to answer, the officer executing the commission shall certify such refusal; and any interrogatory which the party refuses to answer, or which he answers evasively, shall be taken as confessed.
These provisions of the statute provide a ready means by which one party can procure the testimony of his adversary, and they are to the effect that the adversary can be required to testify as to any material fact, except that he may assert his privilege to decline to testify, as any other witness would be entitled to do, where the fact may have a tendency to charge or connect him with the commission of a crime. But the rule is now well settled that where the evidence of a witness will have the effect only of subjecting him to a civil action or pecuniary loss, he will be compelled to testify. 1 Greenl. on Ev., 15 ed., sec. 452. The common law rule, which relieved a party in interest from disclosing facts against his own interest, does not prevail in this State. This is clearly indicated by the provisions of the statute above quoted. The testimony of any party interested in a controversy may be procured like that of any other witness, and as to all pertinent facts he may be required to testify, except, as above stated, where they may have a tendency to criminate him.
That provision of the law that makes the conveyance of a debtor executed in fraud of the rights of his creditors void as to the latter, has not been carried into the criminal statutes of this State. We have no criminal statute in this State making conduct of the character complained of in executing the fraudulent conveyance a crime.
If Peoples and Eaton had been forced to testify, and had told the truth, the effect of their evidence would have been simply to subject them to a pecuniary loss. If their evidence had been procured, and they had testified falsely, the plaintiff would have had a much better standing in the case before us now, and would have had good grounds to set aside the judgment rendered in cause No. 2099. If Peoples and Eaton, when subjected to examination, in response to questions calling for the truth concerning the transaction inquired about, had by their testimony negatived and disproved the existence of fraud in the transaction complained of, and their testimony in this respect had been false and afterwards discovered to be so, we are inclined to the opinion that a court of equity would set aside the judgment procured by such false testimony. It is no reply to the diligence required by law in procuring testimony of witnesses whose evidence might be material in a case, whether they be parties or not, to say that the plaintiff apprehends that they will testify falsely concerning the facts desired to be proven; consequently, he should be relieved from the necessity of an effect to procure such testimony. There is no presumption that Peoples and Eaton, if *Page 243 directly interrogated concerning the transaction, would have testified falsely. It is more likely that they would have preferred to expose their fraud than to commit perjury, and run the risk of a criminal prosecution for that crime.
Motion overruled.