79 P. 686 | Kan. | 1905
The opinion of the court was delivered by
(1) The testimony respecting the consideration for the $2600 mortgage executed by Henry Breitkreutz, sr., to his son satisfies us that the referee was justified in finding it to be fraudulent
(2) The admission in evidence of the note held by the plaintiff below did not affect the substantial rights of defendants, although it was merged in the judgment. A copy of the note was attached to the petition as an exhibit. Its execution was admitted by the pleadings.
(3) The judgment against Henry Breitkreutz, sr., was properly received. It was a necessary prerequisite to sustaining the action. (Tennent v. Battey, 18 Kan. 324; Harrison v. Shaffer, 60 id. 176, 55 Pac. 881.)
Plaintiffs in error are not in position to avail themselves of the alleged error in admitting in evidence the entire record, including the proceedings in attachment in the case of National Bank of Holton against Henry Breitkreutz, sr. The papers in the case were received by the referee subject to objection. The •question of their competency was expressly reserved for further consideration, but the attention of the referee was not thereafter called to the matter. The practice of receiving evidence conditionally is not uncommon in trials before the court or a referee and, when so admitted, the question of its competency must be raised at some later stage of the case, and passed on, before its reception will be held to be erroneous.
(4) Four of the specifications of error relate either to the admission or rejection of evidence. Reference is made in the brief to pages of the record on which
(5) Counsel for plaintiffs in error submitted to the-referee eighteen questions to be answered by him. All but three called for an affirmative or negative response to be answered "yes” or "no.” The interrogatories were in effect a cross-examination of the-referee. Referees are required to state the facts, found and the conclusions of law separately. A trial before a referee is conducted in the same manner as a. trial by the court. (Gen. Stat. 1901, §4740.) In trials by the court conclusions of fact must be stated, in writing separately from conclusions of law, when findings are requested. (Gen. Stat. 1901, §4737.) There was no error committed by the referee in refusing to answer the questions
There was also a request from counsel for plaintiffs-in error for the referee to make twelve conclusions of fact conforming to their views of the facts established by the evidence. In two of these proposed findings-blanks were left to be filled, and several of them were-in contradiction of the facts found by the referee.. When rejected the exception was general to the motion denying the request. Even if some of the findings should have been made, no question was thus-saved for review. The same rule is applicable to a. set of additional findings thereafter requested to be-made by the referee on behalf of the complaining defendants. The exception to their refusal was general. It is sufficient to refer to the language of two or three-of them as follows :
"Henry Breitkreutz testified that he was seventy-three years old, etc. . . . That he owed no debts-*703 of his own only that which he was surety for.” “Herman Breitkreutz testified that all the money turned over to John Q. Myers was used in paying notes upon which his father, Henry Breitkreutz, was surety,” etc.
It is obvious that such findings were properly rejected.
(6) There was no allegation in the petition that defendants Henry Breitkreutz, sr., and Fred Breitkreutz, the judgment debtors, were insolvent at the time the alleged fraudulent mortgage was executed. The charge of insolvency related to the time the petition was filed. Before the suit was begun a general execution was issued on the judgment against the property of the debtor and returned unsatisfied. This fact was alleged in the petition. In jurisdictions where creditors’ suits of this nature may be maintained without the issuance of an execution, it is necessary to allege insolvency. The return of an execution nvlla bona under our practice gives the judgment creditor a standing in the courts to set aside conveyances which tend to defeat the collection of his judgment. (5 Encyc. of Pl. & Pr. 565, 566; Daskam v. Neff and others, 79 Wis. 161, 47 N. W. 1132; Page & Co. v. Peter Grant et al., 9 Ore. 116; 12 Cyc. 24, and cases cited.)
It is objected that plaintiff below had an adequate remedy at law against Rachel N. Breitkreutz, the holder of the legal title, for that the land in controversy might have been sold under a special execution, free from any claim of hers. The case of Taylor v. Lander, 61 Kan. 588, 60 Pac. 320, is relied on. In that case it was sought by a creditor’s suit to set aside a deed executed by the judgment debtor after the land had been attached, the attachment sustained, and judgment rendered. It was held that a creditor’s
We have given consideration to other errors assigned but find nothing to justify a reversal of the judgment. We think the referee and the court below arrived at a just result.
The judgment is affirmed.