53 P. 308 | Nev. | 1898
The facts sufficiently appear in the opinion. The plaintiff recovered a judgment in the district court in and for Lyon county against the defendants for the return to her of ninety-six head of cattle described in her complaint, "if a return thereof can be had, and if a return thereof cannot be had, then for the sum of $2,346, and for her costs of suit," with legal interest on said sum from date of judgment till paid. The case was tried before a jury, and judgment was rendered upon their verdict.
This appeal is taken by the defendants from said judgment and from the order of the court denying a new trial.
The motion for new trial was made on the grounds:
"1. Insufficiency of the evidence to justify the said verdict.
"2. Said verdict is against law.
"3. Errors of law occurring at the trial and excepted to by the defendants."
There is evidence to the effect: That in the month of _____, 1895, J. M. Douglass, one of the defendants herein, brought an action against W. S. Bailey, the husband of the plaintiff, on a money demand, and caused to be attached therein 400 head of horses, 1,900 head of cattle, 18,000 acres of land and certain farming implements, the latter being of the value of $2,500, situated in Churchill county; that a portion of said land, and situated in about the center of said tract, was the homestead of Bailey and wife; that Douglass offered $7,500 for the homestead and farming implements; that the plaintiff refused to part with the homestead, and refused to execute a deed therefor except on condition that said sum should be paid to and received by her in her own right and as her separate property, lest, after parting with her homestead, her husband's creditors should take the proceeds *302 of said sale; that in order to secure to the plaintiff in her own right and as her separate property, by way of gift, said homestead and farming implements and the proceeds of the sale thereof, Bailey assigned and gave to her all of his right, title and interest in the same; that thereupon she executed to Douglass a deed for said property and he paid over to her said sum therefor; that she deposited the said money in bank in her own name and right and continued all the time to exercise exclusive control thereof as her separate property; that in November, 1896, the plaintiff purchased 361 head of beef cattle and received possession thereof, of which the 96 head involved in this action were a part; that of said moneys received by her as aforesaid she paid $4,635 on her said purchase and pledged 264 head of said cattle on which she raised and paid the balance of said purchase money; that all of the above transactions on her part were with the knowledge and consent of her husband, and that he contracted for the purchase of said cattle for her and as her agent and at her request; that after the plaintiff had executed said deed, and on the 31st day of May, 1895, said Douglass bought and had assigned to him a judgment recovered in March, 1895, by the Occidental Land and Improvement Company against W. S. Bailey for the sum of $1,500 and over, and in January, 1897, caused an execution to be issued thereon and said 96 head of cattle to be seized and afterwards sold thereunder by the sheriff, F. L. Littell.
The validity of said assignment and gift by the husband to the wife is vigorously contested by the appellants. The contention of appellants' counsel is, in effect, that the transfer or gift of said property to the plaintiff was made and received with intent to hinder, delay and defraud the creditors of W. S. Bailey, and was null and void; that said sum received for said property was the separate property of the husband or the community property of husband and wife, and that the cattle purchased as aforesaid were such separate or community property and liable to be seized for the debts of the husband.
Respondent's counsel contends, in substance, that the property, the subject of said assignment and gift, being exempt from execution, the debtor, Bailey, might lawfully *303 give it to his wife, and that such gift was not fraudulent in law or in fact, and that his creditors have no legal concern as to the motives for such gift, and that said property and the proceeds of the sale thereof became the separate property of the wife, and as such subject to her control and to her investment in other property in her own right.
Counsel have cited numerous authorities and made elaborate arguments in support of their respective contentions.
Under the statutes of Nevada, the homestead selected by husband and wife, or either of them, or other head of the family, not exceeding five thousand dollars in value, and all the implements of husbandry of the judgment debtor, are exempt from attachment or forced sale on execution, with certain exceptions not involved in this case.
We are of opinion that it is well settled upon reason and authority that, when property is exempt from execution by statute, the owner may transfer it free from any claim of his creditors, if there is no provision in the statute to the contrary. No prejudice or injustice can be wrought to the creditor by such transfer, for the reason that the property is beyond his reach, and his condition, rights and remedies would not be affected by the transfer. (Waugh v. Bridgeford,
Any property of the husband exempt from execution he may, as against his creditors, settle upon or give to his wife. (Robb v. Brewer,
A voluntary conveyance will be held void as against creditors only when it embraces property which is liable to be taken in execution for the payment of debts. (Delashmut v. Trau,
In Premo v. Hewitt,
"Any property of the husband, personal or real, which his creditors could not proceed against, he may, as against them, settle upon his wife. Thus, there is no fraud, in law or in fact, in a conveyance by him to her of the homestead, or of *304 her earnings or cattle, if they are exempt; or of her choses in action, which are not his till reduced to possession, and which his creditors cannot compel him to so reduce." (Stewart on Law of Husband and Wife, sec. 118, and notes.)
"A conveyance by husband to wife of the homestead, which is exempt from execution, cannot be considered fraudulent as to creditors." (Pike v. Miles,
"A creditor cannot, in legal contemplation, be defrauded by the mere conveyance by his debtor of property which by law is exempt from attachment." (Legro v. Lord,
Counsel for respondent cite many authorities in point, including cases in the Supreme Courts of Alabama, Arkansas, California, Michigan, North Carolina, Mississippi and Texas, which are in line with the above cases, which we omit, as they will appear in counsel's brief in the report of this case in 24th Nevada Reports. Of these citations we give Allen v. Hale, 1 Tex. Ct. of App. (Civil Cases) 741, wherein the court say:
"So long as the property remained the homestead, Brockin's creditors had no interest in it, and it would only be after the sale had been completed that his creditors could subject the proceeds to the payment of his debts. But, if he chose to make a gift to the wife of his interest in the homestead, his creditors cannot complain, as to them it cannot be considered fraudulent, for the obvious reason that they had no interest in the property. So, also, if, before the sale is made, he agreed to and did make a gift to his wife of the proceeds to induce her to join in the sale, then such proceeds would be the separate property of the wife, for the same obvious reason that, at the time of the gift, the creditors had no interest in the property, and no right to subject it to the payment of Brockin's debts."
There is nothing in our statutes prohibiting the husband from giving to his wife any property he may own, or in which he may have an interest, when such property is not subject to the claims of his creditors.
"All property of the wife, owned by her before marriage, and that acquired by her afterwards by gift, bequest, devise *305 or descent, with the rents, issues and profits thereof, is her separate property." (Gen. Stats, sec. 499.)
We are of opinion that there is substantial evidence to support the verdict upon all the material issues of fact raised in the case; that the court did not err in the instructions given or in refusing others, and that the verdict of the jury is not against law.
The Costs: Counsel for respondent moved this court to dismiss the appeal on the ground that the judgment is incomplete, in that the costs to which the plaintiff is entitled are not included in the judgment. The judgment, as entered, appears above, and as to costs it is, to wit, "and for her costs of suit," no amount being named therefor. It appears that the cost bill was filed in due time by the plaintiff after the entry of said judgment by the clerk, and the defendants duly moved the court to retax the costs, but subsequently withdrew their motion. The clerk should have inserted the amount of plaintiff's cost bill in the judgment after the defendants had withdrawn their motion to retax. Not having done so is not legal ground for dismissing the appeal.
The motion to dismiss is denied.
The judgment and order appealed from are affirmed, and the clerk of the district court will complete the entry of said judgment as above indicated.
