99 P. 1070 | Utah | 1909
This is an action in the nature of a creditor’s bill. The purpose of the action is to subject certain real estate claimed by the respondent Adaline Stoutt to the payment of a judgment in favor of appellant and against respondent J. M. Stoutt. The material allegations of the complaint, in substance, are: That respondent J. M. Stoutt -on August 1st, 1896, became indebted to appellant in the sum of $4,000. That appellant in November, 1903, obtained a judgment for said indebtedness against respondent I. M, Stoutt for the sum (including interest and costs) of $6,332.15, which judgment is in full force and wholly unpaid. That execution had been duly issued and returned' unsatisfied. That said J. M. Stoutt on the 5th day of August, 1896, purchased certain real estate with his own individual money, but for the purpose of cheating and defrauding the appellant caused the title to such real estate to be placed in the name of Adaline Stoutt. That said J. M. Stoutt is the real owner of said real estate, and that he has no other property subject to execution. That said J. M. Stoutt at the time said real estate wRs purchased and the title thereto was placed in Adaline Stoutt, was insolvent and that $4,000 of the money included within said judgment was used by said I. M. Stoutt in placing improvements upon the real estate purchased as aforesaid. Appellant prayed for the usual judgment or decree in such actions. The respondents answered separately. The answer of J. M. Stoutt in effect, amounted to a general denial, and the answer of Adaline Stoutt, after denying the allegations of the complaint, averred the facts with respect to her purchase and ownership of the real estate described in the complaint, and claimed to be the real and sole owner thereof. After a trial upon the merits the district court, in substance, found the facts as follows: That a judgment was obtained against J. M. Stoutt as alleged in the complaint, and that execution had been duly issued and returned unsatisfied; 'that on the 15th day of July, 1896, the respondent Adaline Stoutt purchased the real estate described in the complaint, and that she paid therefor with mon
Appellant attacks the findings of the court upon the grounds that some are against the clear weight of, while others are not supported by, the evidence. Much space is devoted by both sides to the question of insolvency of J. M. Stoutt, and as to whether appellant was or was not a subsequent creditor. So long, however, as the finding that' respondent .Adaline Stoutt purchased the property in question with her own means and that the same is her separate individual property stands, the questions just referred to are immaterial. The finding is, however, strenuously assailed by counsel for appellant as not being supported by the evidence. We have carefully examined the evidence with regard to the claim of Adaline Stoutt that the property in question was purchased with her own money, and that at the time of the purchase it was purchased as, and has continued to be, her own separate and individual property, and we are all agreed that the finding of the court in this regard is amply supported by the evidence. It is impracticable to set forth the evidence for the purpose of showing what inferences may be deduced from it for and against the claims of appellant. Nor is this necessary, since we are all of one mind that the inferences cannot prevail as against the direct and positive statements of Mrs. Stoutt. While it is true that
The objection to the introduction of the deposition of Adaline Stoutt in evidence upon the ground that
The claim .that the court erred in not excluding the deposition because one of the direct interrogatories was answered by the witness after it had been stricken out by the court cannot prevail. The interrogatory remained among the other interrogatories, and the notary, in taking the
The judgment is affirmed, with costs to respondents.