17 S.D. 190 | S.D. | 1903
Plaintiff, the wife of C. H: Aldous, instituted this action against the defendant, sheriff of Clark county, to
It is disclosed by the evidence that in 1897 the said C. H. Aldous conveyed to the plaintiff a half section of land including their homestead and all his personal property; that the deed was immediately recorded, and a bill of sale filed in the.register of deeds office. There was evidence tending to prove that at the time of the conveyance the husband was indebted, in connection with other parties, to the amount of a few hundred dollars, but the precise amount does not appear. In 1898 the said C. H. Aldous became a surety upon a bond given by a party engaged in the sale of intoxicating liquors, and in an action subsequently brought upon this bond against the principal and his sureties a judgment was recovered, and thereupon an execution was issued and placed in the hands of the defendant, as sheriff, and the property in controversy was seized and sold thereunder.
A motion for new trial was made and denied. The plaintiff contends that the motion should have been granted for the reasons that the evidence was insufficient to justify the verdict, and for errors of law alleged to have been committed in admitting and excluding evidence, and for alleged errors in the court’s instruction to the jury.
We will first consider the alleged errors of law occurring at the trial. In the specifications of error in the bill of exceptions relied on it is stated that the court erred in admitting in evidence, bver the objections of the plaintiff, that part of the defendant’s exhibit No. 3, being the execution and return of the
The next error of law-specified is that the court erred- in admitting in evidence Exhibit 1. This exhibit purported to be an affidavit made by C. H, Aldous, the husband, claiming cer
It is further specified that the court erred in admitting in evidence defendant’s Exhibit 9, which purported to be a statement made by C. H. Aldous, on an ordinary listing blank used by assessors, describing the real and personal property conveyed to the plaintiff, with the usual affidavit annexed thereto. It does not affirmatively appear from the record that the plaintiff in this action had any knowledge of the listing of the property by her husband, and it was, therefore, incompetent and immaterial as against her. It, like the. demand for exemption, was no more than a statement by Aldous that he claimed the property, and tended to impeach the title of the plaintiff, as grantee, to the same. It was not competent to bind her by Such declarations. There was evidence on the part of the defendant tending to prove that the bond which the husband signed as surety contained a statement that he was the owner of a quarter section of land. Plaintiff called as a witness one G-. D. Warner, and he was asked the following question: “Will you tell the jury what statements he (Aldous) made at the time of signing the bond as to his responsibility, or property that he owned?” This question was objected to, and excluded by the court, probably upon the theory that it tended to contradict or vary the terms of a written instrument. But in this view the court was clearly in error. The validity or invalidity of the
It is further specified that the court erred in admitting the evidence of the shorthand reporter as to the evidence of the plaintiff taken at the hearing of the referee before whom the husband was being examined on supplementary proceedings for the purpose of contradicting the plaintiff, said testimony having been given by the plaintiff before the referee without, so far as the record discloses, the consent of her husband. Section 5260, Comp. Laws 1887, provides: (1) “The husband cannot be examined for or against the wife without her consent; nor a wife for or against her husband without his con
It is further claimed that the court erred in its instruction to the jury that an assignment or sale of all of a man’s property when he is largely in debt naturally excites the suspicion of fraud, and is, therefore, evidence of fraud. This portion of the charge was excepted to on the ground that the instruction was not applicable to the case, there being in fact no evidence that Aldous was largely indebted, and consequently this statement m the instruction of the court was calculated to prejudice the jury, and mislead them into giving an erroneous verdict. The jury would naturally assume from this instruction that the husband was largely indebted at the
The court further instructed the jury: “Should you find, as claimed by the plaintiff, Marinda Aldous, that some time in 1897, at the time her husband was free from indebtedness,, that: he made the transfer and gave her all his property,. and that' the transfer was made in good faith, and was made without intent to defraud creditors then existing or subsequent creditors of the said Charles H. Aldous, as claimed by the plaintiff ip this action, in that event you find for.the plaintiff or all the issues.” It will be noticed from this instruction the jury could not find for the plaintiff should they believe from the evidence that the transfer was made withthe intent to defraud then existing creditors of Aldous, though satisfied that there was no: intent to defraud subsequent creditors. The court.had previously instructed the jury as follows: “The jury are instructed that, in order to find a verdict for the defendant, William Olverson, in this case, it is necessary to find from all the evidence that at the time when the property in question was transferred from C. H. Aldous to Marinda Aldous, this plaintiff, that there was an express design and specific intent to defraud the subsequent creditor who obtained the judgment against C. H. Aldous which has been shown in this case, or subsequent creditors generally.” It will be observed that the two instructions are clearly in conflict, and in our opinion, the latter .cor
In the latter case the Supreme Court of Iowa, after a full review of the cases decided by that court, lays down the rule applicable to this class of cases as follows: “We think the correct rule is: (1) A conveyance which is merely voluntary, and when the grantor has no fraudulent view or intent, cannot be impeached by a subsequent creditor. (2) A conveyance actually and intentionally fraudulent as to existing creditors, as a general rule, cannot be impeached by subsequent credit
The judgment of the ch’cuit court and order denying anew trial are reversed.