188 N.W. 742 | S.D. | 1922
Lead Opinion
This case was here, on a former appeal and is reported in 42 S. D. 23, 172 N. W. 779. On the first trial, findings and judgment were in favor of the plaintiff, but we reversed that judgment because of the incompetency of the evidence by which the allegations of fraud contained in the complaint were proved. The case went back for retrial. The complaint was amended so as to change the issues to some extent, and the incompetent evidence that was used on the first trial was supplied by competent evidence of the same facts on the second trial. However, the trial coúrt reached a conclusion on the second trial, op
In addition to the facts stated in the report on the former appeal, it appears from the evidence taken at the second trial that, during the year 1912, defendant W. ,H. Ramsey owned a quarter section of land in *Kidder county, N. D.; also a quarter section of land in Bayfield county, -Wis. On the 27th day of June, 1912, he conveyed the Wisconsin land to his wife and on the 19th day of August, 1912, he conveyed the North Dakota land to her. The consideration for each of these- conveyances, as was expressed in the respective deeds, was $1. The property involved in this case, known as the Ramsey Block, was conveyed to Ella B. Ramsey on the 12th day of July, 1912. 'At this time W. H. Ramsey was indebted to plaintiff in a considerable sum of money, and plaintiff was pressing Ramsey for payment. On the 20th day of September, 1913, an attachment was levied on said Ramsey Block in an action by plaintiff against W. H. Ramsey. On the 1st day of March, 1915, judgment was entered in that action in favor of plaintiff in the sum of $7,065.33. On the 6th day of May, 1915, Ella B. Ramsey by deed conveyed away the North Dakota property for the expressed consideration of $1,800, and on the 10th day of May, 1915, she conveyed away the Wiconsin land for the expressed consideration of $1,400.
It was shown by the testimony of Ella B. Ramsey that, when the Ramsey Block was conveyed to her that it was her understanding that she was to take that and wipe out the $3,400 that had been received by her husband when the home was sold in 1907, but that she was not present when the deed was executed; that she did not have the deed recorded nor pay the recording fee; that she did not know who drew the deed; that her husband attended to all matters conected with the transaction; and that she never saw the deed. The situation was the same in regard to the disposition of the home property, except that she herself executed the deed. No part of the consideration was paid to her, or by her to her husband, it was paid directly to her husband and by him used in his business. He never gave her a note for it or any promise to return it to her or agreed to pay her any interest for the use of it.
“Since we had a recess a few minutes ago I talked with my attorney, and it was in that conversation that this matter was placed in my mind, in which I testified that the deed was sent for record at my request.”
The defendant, W. H. Ramsey, was present at the trial; he could have explained all these transactions, were they susceptible of explanation, but his codefendant did not call him. to the stand, and the plaintiff could not call him' to testify against his wife.
The trial court found, as a fact, that the deed conveying the Ramsey Block was delivered to Ella B. Ramsey, that, at the time of such delivery, W. H. Ramsey was indebted to her in the sum of $3,400, that the property described in such deed was conveyed to her in payment of such indebtedness, and that said deed was not given or received by. her with intent to hinder, delay, or defraud the creditors of the grantor.
The evidence does not sustain these findings. In the first place the evidence such as it is, does not show that the deed ever was delivered to Ella B. 'Ramsey. She admitted she had never seen it and knew absolutely nothing whatever about its execution or recording until after she had left the witness stand and consulted with her counsel and had the matter placed in her mind by him, nor does the evidence sustain the finding that W. H. Ramsey was indebted to Ella B. Ramsey in the sum of $3,400 at the time the deed was executed. He does not appear to have been in debt to any one when he conveyed the homestead to his wife in 1896. He.had a right to convey it to her if he so desired, and there is no question that she became the owner of the legal title to the homestead by virtue of such conveyance. But, when it was sold in 1907, the proceeds were paid directly to him and by him used in his shoe business. He does not appear to have asked his wife’s permission to use it, he did not give her his note for it nor
In cases of this kind the fraudulent intent of parties who are charged with disposing of their property to defraud their creditors must be inferred from the circumstances surrounding the transaction. Direct evidence of such intent is rarely, if ever, available, and in' such cases all the circumstances may be taken into consideration. In this case the defendant, who is claiming the property, justified her claim on the ground that her husband was indebted to her in the sum of $3,400, and that the. conveyances were made in payment of this debt. Had the defendants stopped at this conveyance they might have had some standing in the court, but, at about the same time, and just subsequent to the entry of plaintiff’s judgment against him, the husband conveyed to his wife two other pieces of property from which she had realized almost the full amount of her claim. This part of the transaction defendants make no effort to explain. These conveyances were all made at a time when the husband was in an insolvent condition and was -being pressed for payment. These facts were known to his wife. A conveyance by a husband to a wife under these ’circumstances casts upon her the burden of proving the bona fides of the transaction.
As we view the evidence in this record, the defendant Ella B. Ramsey has failed to satisfactorily explain the transaction. Her testimony is contradictory and inconsistent, and she makes no attempt to explain or justify her acquisition of the North Dakota and Wisconsin land. The fact that she did not put her co-defendant on the stand and have him explain the various transactions involved and permit him to be cross-examined by the plaintiff is a very suspicious circumstance and one which itself requires explanation. In the absence of reasonable explanation as to why W. H. Ramsey should deed all his known assets to his wife -at a time when he was insolvent and his creditors were crowding him for payment, and without any consideration other than a very questionable claim that amounts to scarcely more than half the value of the property conveyed, the inference is irresistible that such conveyances were made pursuant to a concerted plan to put his property beyond the reach of his creditors.
In this class of cases the law requires a full disclosure of property transactions between husband and wife, which may result in depriving creditors of the right to reach the husband’s property. Regardless of the exact dates of transfers of the two quarter sections of land, the law demands an explanation of the disposition of the land, and none was given — and it will be noticed that, while the wife denies that she knew about the deeds to her, it appears that the land stood of record in her name, and she signed deeds to the purchasers, but was not asked whether she received the money or any part of it, for which the land was sold. Besides this, it is not shown by any competent evidence that the Ramsey Block had existing incumbrances of such an amount that the equity in it was not in excess of the $3,400 which she claims her husband owed her.
Upon the evidence in the record and under the circumstances •disclosed by the case, findings and judgment should have been for plaintiff.
The judgment and order appealed from are reversed.
Dissenting Opinion
(dissenting.) I cannot agree with that portion •of the opinion which holds that there was no delivery of the deed •of the Ramsey Block to Ella B. Ramsey.
Section 529, Rev. Code 1919, provides:
“Though a grant be not actually delivered into the possession of the grantee, it is yet to be deemed constructively delivered in the following cases:
“1. Where the instrument is, by the agreement of the parties at the time of execution, understood to, be delivered, and under such circumstances that the grantee is entitled to immediate delivery. * * *”
In my opinion, the undisputed evidence brings the delivery of the deed squarely within that section.
Furthermore the complaint in this case specifically alleged the ■execution and delivery of the deed to Ella B. Ramsey. After the trial was concluded, an application to amend the complaint so as to withdraw such admission of delivery was made by plaintiff, to which defendant objected because it changed the issues. No ruling was then made upon such application. Afterwards, and on July 17', 1920, the trial court signed the findings, conclusions, and judgment and, on July 19, 1920, signed an order permitting the amendment to the complaint. I am of the opinion that upon this appeal we must treat the deed as delivered.