130 Iowa 281 | Iowa | 1905
Briefly stated, the facts out of which this controversy grows are these: On April 11, 1903, J. II. Atkinson, a tobacco dealer at Mason City, was indebted to the defendant the First National Bank of Mason City, of which bank the defendant McNider was president, in the sum of $3,500. The indebtedness was represented by an overdue note for $2,250, and an overdraft in the bank made up the balance. On that day a new note was taken in the name of McNider for the full amount of the indebtedness. As security for said note, there was executed and delivered by Atkinson to McNider a conveyance- — -in form a warranty deed — of the premises in question, ■ which consists of an undivided interest in the bank building and lot occupied by the defendant bank in Mason City. The only testimony on the subject makes the value of said property less than the amount of the indebtedness as represented by the' note so executed.^ .The bona fides of the indebtedness is. not questioned, and, in explanation of the fact that the note and deed was taken in his name,.-McNider testified that as be
As already stated, counsel for appellant do not question the consideration for the deed. It is their contention .that the same should be held void because made and received with the intent to defraud creditors. And the prayer of the petition is, in the alternative, for a decree setting aside the conveyance and the establishment of the lien of her judgment on the property, or, if this may not be done, that- the interest of McNider as mortgagee be ascertained, and the property sold; the balance, if any remaining over, to be paid to her. The defendant asserts the bona fides of the transaction on his part, and, further, he asserts that about July, 1903, it was agreed between himself and Atkinson that the deed should be held to be an absolute conveyance of the property, and accordingly that the note of indebtedness from that time should be regarded as paid and canceled.
We need not stop to consider the relations between Mc-Nider and the defendant bank as to the Atkinson indebted
We conclude that plaintiff has not sustained the burden assumed by her of showing the conveyance fraudulent as to her. If we should concede, as contended for in argument by her counsel, that the transaction was unusual, or that inherently it was open to suspicion, such would not be sufficient. Suspicion is not enough. Fraud must be proven. Smith v. Hall, 126 Iowa, 627; Clark v. Ford, 126 Iowa, 460.
The decree meets with our approval, and it is affirmed.