169 P. 267 | Utah | 1917
This is a creditor’s suit against the defendants, who are husband and wife. The purpose of the action was to have certain conveyances of real estate made by the husband to the wife declared void as against the plaintiff, and to have the proceeds which the wife obtained for said real estate declared to be held in trust by her for the use of her husband, and that the same be applied to satisfy the plaintiff’s judgments which he had obtained against the husband. Briefly stated, the controlling facts are as follows:
On the 14th day of October, 1912, the plaintiff and the defendant Emory A. Smith entered into an agreement whereby said Smith leased from the plaintiff certain premises in Salt Lake City for the term of five years, commencing on the 1st day of November, 1912, and ending on the 1st day of November, 1917. Mr. Smith agreed to pay as rent for said premises the sum of $9,675 in monthly installments as provided in the lease. At the time the lease was entered into Mr. Smith represented to the plaintiff that he owned real estate in Weber County, Utah, of the value of $15,000. Mr. Smith went into possession of the demised premises, and some time in April, 1913, he asked permission from the plaintiff to assign the unexpired term of the lease to a corporation which he proposed to organize. While the plaintiff gave such permission, yet it was given upon the express condition that Smith should not be released from the obligation to pay the rent on the demised premises as he had agreed. No corporation was formed, but Smith subsequently assigned the lease to one Peterson upon the condi
The defendants in this action claim the one parcel of land still held in the name of the wife, and the proceeds of the parcels which were sold with the plaintiff’s consent as aforesaid, the aggregate value of which proceeds and parcel of land amount to the sum of $2,600 or $2,700, as exempt as a homestead under our statute which allows all heads of families a homestead exemption not exceeding a certain value, or, in case the homestead has been sold,- then, in lieu thereof, the proceeds derived therefrom not exceeding the value aforesaid for the period of one year. The amount of homestead exemption Mr. Smith is entitled to under our statute is as follows: $1,500 for himself, $500 for his wife, and $250 for each minor child dependent upon him for support. He has a wife and five minor children dependent upon him. He therefore would be entitled to claim a homestead exemption amounting to the sum of $3,250. The district court, however, found that in view that Mr. Smith was guilty of fraud in disposing of his property that by reason of that fact he was prevented from successfully claiming a homestead exemption in the property conveyed to his wife, and hence denied his claim of homestead exemption. The court further found that the wife held all of the property conveyed to her by her husband, and the proceeds derived therefrom as before stated, in trust for him, and entered judgment requiring the wife — “to indorse said stock [purchased as aforesaid] in blank and deliver the same to the clerk of this court, * # * to be held by the clerk of this court pending the
Both the husband and wife appeal from the judgment.
Among other things, they insist that the court erred in finding that the conveyance of said real estate was made with the intention to defraud the plaintiff. The contention is not tenable. The evidence is ample to sustain the court’s findings in that regard.
It is next urged that the conclusions of law and judgment are erroneous because there is neither evidence nor finding that Peterson, the assignee of the lease, was insolvent. We are of the opinion, however, that this contention must also fail. While it is true that there is no direct evidence of Mr. Peterson’s insolvency, there, however, is ample indirect evidence to justify such a finding.
It is further contended by the appellants that the court erred in disallowing their claim of homestead exemption. In our judgment the contention is well founded. We
"The fact that the owner of the homestead has conveyed it with intent to defraud his creditors docs not affect his right to claim a homestead exemption in the premises so conveyed.”
The mere fact, therefore, that Mr. Smith conveyed the land, a portion of which is claimed by him as exempt, to his wife to defraud the plaintiff, as found by the court, does not deprive him of the right to claim a homestead exemption in the premises so conveyed. The only legal effect of the conveyance was to transfer the title from the husband to the wife. If Mr,
Finally, it is contended that the district court erred in requiring Mr. Smith’s wife to indorse and deposit with the clerk of the court the corporate stock held by her as hereinbefore stated and in adjudging that said stock was subject to any future judgments that might be obtained by the
For the reason stated, the findings of fact, conclusions of law, and judgment should be, and they hereby are, modified to the extent that the same are contrary to the views herein expressed, and in all other respects the same are affirmed. The ease is therefore remanded to the district court of' Weber County with directions to modify the findings of fact, conclusions of law, and decree so as to make them conform to the views herein expressed; that is, to allow the defendants’ claim of homestead exemption to the extent provided by our statute out of the parcel of land still held by the wife and out of the proceeds of the parcels which were sold pending this action with the consent of the plaintiff, and to modify the conclusions of law and judgment so as to relieve therefrom the amount of corporate stock in excess of what is necessary to satisfy the judgments on which this action is based. Appellants to recover their costs on appeal.