187 Iowa 407 | Iowa | 1919
The plaintiff and the defendant were married in Avoca, Iowa, on the 7th day of September, 1904, and lived together as husband and wife until about August, 1912. The defendant then abandoned plaintiff, and went
On the 13th day of February, 1913, the plaintiff filed a petition praying that she be granted a divorce from her husband, on the ground of cruel and inhuman treatment, and asking judgment for alimony in the sum of $10,000. In this action she secured a writ of attachment in due form, and the property in controversy, with other property, was duly levied upon and held under the attachment. After the levy of the attachment, and while the divorce action was still pending, on the 19th of March, 1913, May B. Davis, mother of the defendant, intervened, claiming to be the owner of certain of the property levied upon under the attachment, to wit: 10 shares of stock in the Shelby County State Bank, located at Harlan, Iowa; 20 shares of the Harlan & Avoca Telegraph & Telephone Company stock, with headquarters at Harlan, and 5 shares of the stock of .the Citizens Savings Bank, at Avoca. As a- basis for such claim, she alleged that, on or about the 1st of February, 1913, the defendant was indebted to her, and persons represented by her, in the full sum of $17,500; that this was then past due; and that, on or about said date, he assigned and transferred to her the aforementioned shares of the stock, in partial payment of said indebtedness, and that the same was duly transferred to her on the books of the respective corporations; that plaintiff’s attachment was levied after the sale and transfer and delivery of said stock: and she prays that said stock be released from said levy, and that she be decreed to be the absolute owner of the same.
By consent of all parties, plaintiff’s petition for divorce was first heard. On the 14th day of September, 1914, one year and six months after the filing of the petition, a
Thereafter, and on the 18th day of December, 1914, plaintiff filed her answer to the petition of intervention, in which she alleged, among other things, that, on or about February 1, 1913, the intervener, the defendant (Joseph V. Davis), and his two sisters, Ada Davis and Yinnie Duke, entered into a conspiracy/ whereby it was agreed that the defendant should cease to live with this plaintiff as her husband, and should thereafter remain out of the state and beyond the jurisdiction of this court, and should convey to his mother, this intervener, all the property mentioned in said petition of intervention, and all other property owned by him within the jurisdiction of this court, to be held by said intervener, the mother, in secret trust for the use and benefit of the defendant, and for the purpose of cheating and defrauding this plaintiff out of her light to obtain or receive any part of said property for her support, or for her separate maintenance, or as alimony; that, in pursuance of said conspiracy, and with intent to defraud her, as aforesaid, the defendant, without consideration, made a pretended sale and transfer to intervener of the stock mentioned and described in the petition of intervention; and that intervener participated in said fraudulent intent, and took the property in aid of said fraudulent scheme and purpose. In her answer, she set out the decree of divorce and the judgment and decree for alimony, and asked that the rights secured to her in said
The cause was then tried, on the petition of intervener and plaintiff’s answer thereto. After trial, a decree was entered, on June 16, 1915, finding the intervener entitled to the property in controversy, as against the plaintiff. Plaintiff appeals.
There is practically no dispute in the testimony. The cause is triable de novo. The question for us is: What does this evidence, considered as a whole, show the ultimate facts to be? What reasonable deductions or inferences should be drawn from this testimony, supporting or otherwise, the ultimate facts upon which the rights of these parties depend?
The evidence reveals the transaction by which she acquired the interest claimed, and the motives that prompted it. The facts disclosed by the evidence are substantially as follows: In May, 1912, the defendant, who will hereafter be designated as Joe, abandoned his wife, and in Au
“After I got transfers of this property in controversy, if May had signed the deed to the Jasper County farm, Joe would have nothing left in this state except his two-ninths interest in the Stringer property, which is not worth above $100, and his homestead. All the other property that he would then have would be outside the state of Iowa. I knew this when I was trying to get her to sign the deed to the Jasper County farm. If I had gotten my scheme through before starting anything, I would have had all Joe’s property, in this state, absorbed by me and Walter, except an equity of $100 in the Stringer property. I knew that Joe wanted her to sign the deed before I came down, because I heard some talk to that effect. Ada wanted the deed to the farm signed before I started anything. Ada knew my business at Harlan. She knew my whole business there, and Joe knew it too. All my business down there was understood by all of us, — that is, we three, myself, Joe and Ada, — and it was understood that I was going to say something to May, and that was my business; and it was understood among us three that I was to say something. After she refused to sign the deed, I did say something. I began to talk about separate maintenance. It was Joe’s wish, and it was Joe’s and Walter’s wish that we should get it away from her and get it into our hands.”
The letter referred to, written by Ada, the sister, to the mother while the mother was at Harlan, so far as material, is as follows:
“Joe and Walter want May to sign a quitclaim deed to the Jasper County land; so don’t start anything until Joe sends one down to her.”
The intervener testified, touching this visit:
“I think it was in February that Joe arranged with me to come to Harlan and see May in his interest. It was arranged some time before I started. I told her Joe was disappointed because he didn’t have children; that a baby in the house might have a tendency to hold a man. I told her that she and Joe didn’t seem to live happily together; that he found it something of ,a burden to pay the bills at Harlan; and that he would like her to take a certain sum each month, which was less than he had been sending down; and it might lead 'eventually to a separation. I don’t know that I told her that I had come down to Harlan for anything in particular, but I told her that Joe wanted me to talk with her about living separately, and being satisfied. I didn’t tell her that I had gotten this stock. It wasn’t any of her business. I didn’t tell her that we three women had taken a note from Joe each in the sum of $3,314.42.”
It appears that the property that came to this family came through the death of a wealthy father. The interven
It appears that, on all notes given by the children to the mother, as trustee of the estate, the interest had been promptly paid, and no interest was due from this defendant on any of his obligations to the estate at the time the.
So it appears that, at the time it is claimed this settlement was made, on the last of January, 1913, or the first of February, in which it was figured up that Joe owed the mother and sisters, or the estate, $10,000, and executed his notes in equal proportion to each of them, and assigned this stock to the mother as partial payment of, or as security for, the indebtedness owed by him, the mother was holding a deed to all his interest in the property in Minneapolis which she supposed was ample security for all the indebtedness that Joe owed the estate. The manner in which he became indebted, if indebted at all, to these sisters is not fully exemplified in this record; but we may assume that he was indebted substantially as he claimed.
“I was away from my home in Harlan at the time the intervener came. When I came home, I asked her where her grips were, and she said they were down town. We walked down to get them. On the way down, she said: 'By the way, we will step into the notary’s office. I want you to sign a deed that Joe has sent down;’ that Joe wanted the land transferred to Walter. I asked her if it had been sold, and she said, 'No.’ Again, on Sunday morning, she laid the deed on the table, and said: 'I want you to sign this deed. I think you better think it over, and sign it.’ I said I was in no hurry. I said: 'Are they selling immediately, or is it a sale?’ She said, 'No;’ that it would simply expedite matters; that they wanted it transferred to Walter, so that it might be more easily handled. I asked her why Joe had not written me about the deed, and she said, ‘Joe doesn’t write.’ I told her that Joe had overlooked the matter of sending me down the $20 allowance. She answered: ‘Well, May, Joe sent me down here to ask you for a legal separation, — a mutual separation. He re
Defendant, speaking of this transfer in question, said:
“I was perfectly willing to give my mother this savings’ bank stock and telephone stock to secure her. She already had the property in Minneapolis to secure her. I don’t know what thé Seventh Street property of seven flats is worth now. We were offered $25,000 for it, some years ago. I don’t think the Vine Street property is worth $40,000, but don’t know what it is worth. Minneapolis is improving very rapidly, and property is increasing in value. My mother had a quitclaim deed on both of these properties, to secure this very debt. I wanted to give this stock to her, so that she could have both for security. T have paid Vina, my sister, what I owed her. The reason I have not paid my mother is that I don’t care to, and don’t have to. I paid Vina in the spring of 1914. I paid Ada about" March or April, — March, I think, — 1913. I think it was in March, 1913, or it might have b.een April, that I paid them both. I got the money and paid them both about that time. At the time we made the settlement, we gathered up all the notes that E. W. Davis estate held against any of us, and canceled them. I don’t know where those notes are now. At the time I sold the stock to my mother, T don’t know whether it was worth $185 or $200 a share. T didn’t try to sell it to anyone outside of the family.”
The intervener testifies:
“We had our settlement on January 28th, at the home where we lived. Yina was then in Colorado. Ada and Joe and I represented her.' I don’t know what time of week it was. It might have been on Sunday or a holiday. It might have been any day, or any time of night. He made out three notes, one to me and one to Ada and one to Yina, of $3,314.42, each. I don’t know whether Vina’s note has been sent to her. After it was made, I have seen- it in
She further testified:
“Joe didn’t offer to sell this bank stock to get the money. I didn’t want that done. Joe didn’t want it done either, and we were not going to let the stock leave the family, and Ada didn’t take it, even though the stock contained her father’s name; and, in order to fix up the deal, he sold the stock to me, and Ada holds my note for it, and I have not paid it. I have been waiting for this case to be decided. [This was said with reference to the Shelby County Bank stock.] .1 was going to have this bank stock kept in the family; and if Joe couldn’t hold it, I would try to. That is the reason why this deal was made. At the time I took this stock, nothing was said about the Aberdeen bank stock. Joe had also an interest in the Fullerton-Baker-Nelson notes, and his interest in them would be $10,000. He had a $1,075 note, besides. It was after he had all the arrangements to have the bank stock transferred to me, and after I had tried to get her to sign her right away to the Jasper County farm, that I began to talk to her about separation, and living cheaper. I had not gotten all his property then, but I had made arrangements here in Harlan to have it transferred to me; and I knew very well that, if she had signed the deed I wanted her to, with what other property he had conveyed to me, there would be nothing left in this state belonging to him except the homestead. I have disposed of all the dividends of the Avoca
This, in a rough way, is the testimony as it appears in the record. From this testimony, it is apparent to us that a scheme had been entered into between the intervener, the defendant, and his sister to separate the defendant from his wife; that they recognized that, in the separation, she would be entitled to alimony; that the property, in Iowa would be more readily reached by her than property situated in foreign states. ' To this end, the settlement was devised. To this end, the notes were given. To accomplish this end, the stock in controversy was transferred; and we have no doubt that the effort to secure a deed to the Jasper County land was in the line of the same conspiracy. As said before, the plaintiff’s right to a divorce, her right to alimony, her right to appropriate this property which was within the jurisdiction of the court, to the payment of any alimony allowed her,, had fully accrued before these transfers were made. Her rights were fixed. Nothing further was necessary to secure the rights to her, excepting the action of the court. It was in anticipation of this action that the transfer was made. While there is evidence to the contrary, we have serious doubts, from this record, whether the transfer of this stock, or the arrangement for the transfer, was made before the visit of the mother to
We think the record justifies us in saying that there was, in fact, no legal transfer, simply a colorable transaction, to the end that some showing might be made against this plaintiff in the event that she sought to attach this property by any process through the courts of this state. The decree entered in the divorce proceedings gives to the plaintiff all the interest in this property of the defendant in this suit. We think this interest is available to her now; that the intervener has no interest in the property that a court of equity will recognize and protect. The blighting influence of fraud is the undoing of it all. The scheme was not born of any thought of protecting the mother, or the estate of which she claims to be trustee, but for the protection of Joe, if possible, against the consequences that flowed from the rightful assertion of his wife to alimony out of his property. We feel justified in saying that the trail of the serpent is over it all. We think the court was wrong in giving intervener the relief granted. Intervener’s petition should have been dismissed as without equity, and the
The case is, therefore, reversed, and intervener’s petition ordered dismissed. — Reversed.