69 Minn. 101 | Minn. | 1897
The only question presented by the record is whether the conclusions of law are justified by the findings of fact.
Prior to this, however, and on September 8, plaintiff had brought suit against Fred Hoschildt for the recovery of a debt, in which he finally obtained his present judgment, and on November 20 (one day after the consummation of the trade referred to) attached the land conveyed by Mrs. Hoschildt to Benrud. On November 19, but before the deed from Hoschildt and wife was delivered to Benrud, and before any of the consideration therefor had been paid or delivered to Mrs. Hoschildt, the plaintiff, by his attorney, Hughes, personally informed Benrud of the existence of the indebtedness of Hoschildt to plaintiff, and that the transaction by which Hoschildt had conveyed this property through Simonds to his wife was a fraud, and
It requires no argument to prove that the conveyances from Hoschildt and wife to Simonds, and from Simonds back to Mrs. Hoschildt, were fraudulent and void as to the creditors of Hoschildt. It is wholly immaterial whether the wife or Simonds did or did not know of Hoschildt’s fraudulent intent, for they were not purchasers for a valuable consideration. The fact that by the terms of the deed from Simonds to Mrs. Hoschildt the latter assumed and agreed to pay the $400 mortgage on the land does not help the matter a particle. Hence the question in the case is whether Benrud was a bona fide purchaser; that is, a purchaser without notice of the fraudulent intent of his grantors. The court having found only the evidentiary facts, and not the ultimate fact, we recognize the rule that, to hold that Benrud was a purchaser with notice, that result must necessarily follow as a conclusion of law from the facts found. It seems to us that such a conclusion is inevitable.
To charge a purchaser with notice of his grantor’s fraud, it is not necessary that he have actual knowledge or positive and legal proof of it. It is sufficient if he has notice of such facts as should put him upon inquiry. In this case it is not necessary, in order to charge Benrud with notice, to rely exclusively on constructive notice, for he had actual notice before he closed the bargain or parted with a dollar of the consideration. This actual notice was enforced and strengthened by the fact, which the records and abstract of title disclosed to him, that plaintiff’s debtor had without consideration conveyed this property to a third party, who immediately and without consideration reconveyed it to the debtor’s wife, — a transaction most suggestive of fraud,- — and yet with all this notice he persisted in immediately accepting the conveyance and paying over the consideration. If this evidence is not conclusive, it would be difficult to conceive of a state of facts that would be.
The court finds that, after plaintiff attached the land, and before he brought this action, Benrud paid to plaintiff the $400 mortgage on the property already referred to, and that plaintiff accepted such payment. This does not estop plaintiff from assailing the conveyances on the ground of fraud; but, in the judgment setting aside these conveyances, Benrud should be protected to the extent of the amount thus paid, and plaintiff’s judgment lien on the land declared subordinate to Benrud’s right to be subrogated to the rights which plaintiff had as mortgagee before the mortgage was paid.
As the record does not contain either a case or bill of exceptions, we cannot tell what the evidence was, or the precise theory of the law upon which the case was tried. We are, therefore, not inclined to direct absolutely that judgment on the findings be entered for the plaintiff.
The judgment is reversed, and the cause remanded, with directions to the court below to enter judgment for the plaintiff in accordance with this opinion, unless,- for cause shown, it shall in its discretion grant a new trial. So ordered.
BUCK, J., did not sit.