Farmers' & Merchants' State Bank of Hecla v. Michael

157 N.W. 988 | S.D. | 1916

SMITH, J.

Appeal from an order denying defendant’s motion to dissolve an attachment. The writ was issued upon an affidavit alleging:

“That the above-named defendant has assigned and disposed of property, and is1 about to assign, dispose of, and secrete his property, with intent bo* defraud creditors.”

The motion to dissolve was on the ground: First, that the affidavit does not state facts sufficient upon which to base the warrant of attachment; second, that the defendant -has not assigned nor disposed of any of his property with intent to defraud' his creditors, and that he is- not about to assign or dispose or secrete any of his property with .intent to defraud his creditors, or for any other purpose whatsoever. The first ground of motion, as discussed in appellant’s brief, is that the attachment affidavit does •not specify the grounds of the cause of action wherein the attachment was sought. In view of the fact that the second ground of the motion must ibe held decisive of this- appeal, we deem it unnecessary to consider the first. The motion was founded upon affidavits of the defendant J. D. Michael, and of his wife, Annie M. Michael, each .averring substantially the same facts, viz., that at the time defendant -became a resident of the state of South Dakota, the w-ife, Annie M1. Michael, was the owner of real property in the state of Io-wa, upon which- she raised -money to purchase land in Marshall county, S. D.; that the, name of the husband, J L. Michael, was inadvertently inserted in the deed as grantee.; that the land so purchased- in Marshall county was occupied by herself and family as a homestead; that in the month of January, 1915, the Marshall county land was exchanged for certain real and personal property in the town of Amherst; that it was agreed that the -title- to all property received in s-aid exchange should be taken- in the name of Annie M. Mi-cha-el as her own property; that when the exchange was finally completed the name oí J. L. Michael, her husband, was inadvertently inserted in the deed as grantee; that immediately after said dee-d -was received, and • on the 26th of March, 1915, to1 carry o-ut said agreement, the husband executed and delivered to his wife- a warranty -deed for the real property, and a bill of sale for all of the personal property;, that at the time of said exchange Annie M. Michael immediately entered into and took possession of all of said property, both real and personal; and t-h-at her husband never, at any time, exercised any acts .of ownership; that said transfer was made in good faith, and for the sole purpose of placing the legal title to said property ■in the person to whom it already belonged, and not for the purpose nor -with- the -intent to hinder, delay, or defraud- any of the creditors of -said defendant. The defendant in- his affidavit further specifically denies that he has assigned or disposed1 of any of .his-property -with intent to defraud- his creditors, or for any other-purpose whatsoever, except as therein stated1. As a part of the showing u-pon the motion, defendant offered with hi-s affidavits the deeds and bill of sale referred to.

At the hearing plaintiff offered1 no affidavits- or other evidence in denial or rebuttal of -the showng made by defendant. The trial court erred in its refusal to dissolve the- attachment. The affidavits- of defendant positively -denied the facts alleged in the-affidavit upon which the attachment was issued1, and denied that c pendant had made any transfer of property except as stated in the affidavits, which is averred to have been made in good faith, for a proper purpose, and with no intent to defraud creditors. The effect of these affidavits was to cast upon plaintiff the burden of proving’ facts constituting the alleged grounds of attachment. In the absence of such proof the attachment should have been dissolved. Piper v. Wade et ux., 28 S. D. 196, 132 N. W. 786; Catlett v. Ehrler, 36 S. D. 591, 156 N. W. 81, and cases cited.

The order of the trial court is reversed, with directions to the trial court to dissolve the attachment.