51 Iowa 364 | Iowa | 1879
— In November, 1873, the plaintiff conveyed to the defendant Lown, by warranty deed, the real estate in controversy, the expressed consideration being one thousand five hundred dollars. In November, 1878, Lown conveyed the premises to his co-defendants, Spencer and Knettle.
The conveyance to Lown is sought to be set aside on the following grounds : First, there was no consideration; ''second, it was temporary, and it was agreed the premises should be reconveyed to the plaintiff whenever he should request it;
The relief asked was resisted because — First, none of the grounds relied on ever existed; second, Lown purchased the premises and paid a valuable consideration therefor; third, conceding the existence of the grounds upon which relief was asked, they cannot be established by parol evidence; fourth, the conveyance was made to defraud creditors; and, fifth, Spencer and Knettle are purchasers for a valuable consideration, without notice.
We have read with care the pleadings, evidence and arguments of counsel, and the following briefly stated are the conclusions reached:
It is proper we should allude to what is claimed to be twm acts of ownership exercised by Lown. He was notified by
We feel satisfied the defense interposed by Lown is devoid-of merit.
II. ' The plaintiff was in possesson at the time Lown conveyed to his co-defendants. The latter, therefore, are chargeable with notice of his rights- and equities. Their title depends upon the question whether the plaintiff is entitled to and can have, under the established rules prevailing in courts of equity, the relief asked. This question wre now proceed to consider.
IV. In the original petition the plaintiff asked a reconveyance on the ground the conveyance to Lown was a trust. This was abandoned in the amended qjetition. This question has been discussed by counsel, but as it is not in the case no determination thereof is made. It may be properly remarked
V. The conveyance cannot be set aside because the plaintiff was imbecile or of weak mind. There is a failure of proof in this respect. It is true the plaintiff had for some years been addicted to an excessive use of intoxicating liquors. To a degree his intellect was probably impaired, but not sufficiently so to warrant the setting aside the deed on this ground alone.
This brings us to the question whether fraud has been established. If the age of the plaintiff was proven it has escaped our attention, but we judge he was upward of forty years of age when he was married in 1865. Previous to that event, and subsequent to his divorce, which soon followed, he made his home, to some extent, with Lown. At least he was frequently there, and some considerable intimacy existed between them; otherwise, Lown and his family would not have taken care of him when he came and made himself disgusting by his filthy habits and conduct.
On the day preceding that on which the deed was executed the plaintiff came to Lown’s house, and he testifies, in reply
The testimony of the plaintiff is corroborated and strengthened by the declarations of Lown, made afterward to three of the witnesses. There is no testimony tending to show that plaintiff’s divorced wife contemplated making any claim on him or his property, or that Lown so thought or believed. His declarations after the conveyance lead to the conclusion there was an object in getting the conveyance which was not disclosed. Lown' proposed to plaintiff’s brother to divide with him at the former’s death, which he thought would soon occur.
Relying somewhat on the belief that plaintiff's mind had, to some extent, become weakened from the use of intoxicating liquor, the intimacy between Lown and the plaintiff, and the influence resulting therefrom, which was the more potent because of the plaintiff’s habits, together with what was said by Lown to induce the conveyance, we are of the opinion that fraud has been sufficiently established. Equity does not require that the party making the false representation should have known it to be false. It is sufficient if the representation be shown to be false or untrue, and that the other party acted thereon under the belief it was true. Of course the false representation must have been material, and the inducing cause of the given act. These conditions or exceptions existed in the present case, and the burden, we think, was on Lown to prove the representation was true, or that he had reason to so believe. This he has entirely failed to do.
The debtor cannot be permitted to determine whether or not there are creditors or others who may be defrauded by the conveyance. The law must determine this question. Hook v. Mowre et al., 17 Iowa, 195. Bump on Fraudulent Conveyances, 484.
If the plaintiff had been indicted under the statute he could not have been convicted unless it could have been established there were creditors, or that the conveyance was made to defraud some person who had or might have a claim or
, Tested by what has been said we are not satisfied the conveyance was made with a fraudulent intent. There is no pretense that there were any creditors unless the plaintiff’s diyorced wife was such. There is no testimony tending to show she was such, or had any claim or contemplated making one. Much less is it shown she had a demand which was enforceable.
, It is insisted the statute provides, where a divorce has been granted and alimony allowed, that “subsequent changes” in relation thereto may be made by the court as “circumstances ‘ render them expedient” (Code, § 2229), and it is urged the conveyance was made to avoid such contingent liability. Conceding this to be true, it was wholly imaginary, and engendered in the mind of the plaintiff possibly by rumor, and confirmed and fastened therein by the defendant Lown. Such ’'being the case the latter should at least establish there were ■ grounds upon which his belief as to such a claim or demand •could be supported. We are warranted in concluding from the record that such a claim or demand is and was at the '■ time of the transaction a myth or pretense.
The conveyance having been made because of and in reliance on the fraudulent representation of Lown, the plaintiff has the right to have the same set aside.
VII. The defendants insist that the plaintiff should have offered to pay the amount he was indebted to Lown before he was entitled to any relief. There are two sufficient answers to this proposition. We are not satisfied there was any indebtedness, and the case was not' tried in the court below on any such theory. The only defense the defendants pretended to have was that Lown had purchased the property, and the indebtedness, if any there was, was thereby extinguished.
Affirmed.