Ferguson v. Kumler, 11 Minn. 104

Ferguson v. Kumler

11 Minn. 104 | Minn. | 1865

By the Court

Berry, J.

This action is brought for the purpose of setting aside certain alleged fraudulent conveyances made by the appellant, Joseph Kumler and his wife, to Michael Kumler. Prior to, and at the time when the conveyances were executed, the respondent held two notes for $500 each, against Joseph Kumler, and these notes were in suit when the conveyances were made. Subsequent to the conveyances, judgment was rendered for said notes and interest in favor of the respondent, and against Joseph Kumler. The respondent seeks to set aside the conveyances, in order that the lands conveyed may be subjected to execution on his judgment. For the purpose of showing that the conveyances were not made with the intent to defraud any la/wful creditor, the answer attempts to attack the judgment, by setting up certain matters which were litigated in the action upon which the judgment was rendered, and as to which there can be no question that Joseph Kumler, who was defendant in that action, is concluded by the judgment. But it is insisted that within the principle enunciated in Bruggerman v. Hoerr et al., 7 Minn. 337, Michael Kumler, who was not a party to that *110action, and who is the grantee named in the alleged fraudulent conveyances, is not concluded by the judgment, but that it is open to him to show that the demand upon which the judgment was recovered, was not justly due to the respondent, and that therefore the conveyances cannot be adjudged fraudulent, beocmse they cannot be said to have been made with intent to hinder, delay or defraud creditors of “ then* la/wfvl suits, * * * debts or demands,” within the provision of the statute touching this subject, and found on page 450 Pub. Stat. It is not, however, necessary to consider the question raised by this point. For if it is competent for Michael Kumler to impeach the judgment in the manner attempted, the matter which he must allege and prove, in order to assail the judgment successfully, must be something which would have constituted a legal defense in the action in which the judgment was rendered. The judgment ought to be held good, not only against the judgment debtor, but all the world, if it was duly rendered on a sufficient cause of action. Of course we have no reference to a case where judgment was obtained by fraud on the part of the court, or referee, or by a fraudulent collusion between the judgment creditor and debtor, neither of which is charged in the answer. Now the matter oí defense which Michael Kumler sets up here, is based upon two promissory notes given by the respondent to Joseph Kumler, and which it is claimed ought to have been set off or recouped against the demands on which the judgment was rendered. The consideration of both of these notes was money furnished by Joseph Kumler to the respondent, with which to pre-enipt certain United States land, on an agreement to convey one-half of them in consideration of said money to Joseph Kumler. That this was an illegal and void transaction, has been settled in The St. Peter Co. v. Bunker, 5 Minn. 192; Bruggerman v. Hoerr et al., 7 Minn. 343. Of course these notes could furnish no legal cause of action or set-off, or recoupment against the demands which the respondent held against Joseph *111Kumler. Assuming, then, that Michael Kumler had a right to assail the judgment against Joseph Kumler, the attack in this case was entirely futile, for even if the facts which he alleges be conceded, he shows no ground of defense which would have been available in the original action; no reason why the judgment was not duly and justly rendered. Although it' is true that the notes upon which the judgment was rendered were given for the purchase price of a part of the land which the respondent is seeking to reach with his execution, this is not an action in which any attempt is made to set up or enforce a vendor’s hen, and we therefore deem it unnecessary to examine the points made by the appellants on that subject.

By the docketing of his judgment, the respondent acquired a hen upon any real estate belonging to Joseph Kumler. At that time the lands which had been conveyed by Ferguson to Joseph Kumler, had been by Joseph Kumler conveyed to Michael Kumler. It appears by the answer (and by the motion for judgment on the pleadings, notwithstanding the answer, whatever is well pleaded in the answer is admitted) that this conveyance was made by Joseph Kumler, and accepted by Michael Kumler, in satisfaction of an indebtedness for $1250, and interest, for money lent, evidenced by a note executed by Joseph Kumler in favor of Michael Kumler, and that upon the delivery of the deed the note was delivered up. So far as appears, this was an honest debt, and one which Joseph Kumler had a right to pay in preference to paying the respondent. It does not appear that there, was any considerable disproportion between the value of the land and the amount of the note for $1250.

Nor do we discover anything in the circumstances attending the conveyance which furnishes any satisfactory evidence that it was fraudulent. This was a transaction between father and son, and that it should be characterized by mutual confidence is not unnatural, unreasonable, or fraudulenty?<?r se. The fact that in taking a conveyance of the land in satisfaction of his *112debt, Michael Kumler absorbed the fund from which the respondent expected to make his judgment, and in that way hindered him from collecting it, only shows that he was foremost in the race of diligence. Entertaining these views, we think that this part of the answer furnished a good defense pro tazvto. So far as the land therein referred to was concerned, the respondent was not, upon the pleadings, entitled to the •relief prayed for. As to the other tract of land situate in McLeod county, it appears that this was pre-empted by Joseph Kumler in 1861; that Michael Kumler furnished him the preemption money, and that as security therefor, Joseph Kumler assigned to Michael the certificate of purchase. There is no allegation that the respondent had notice, actual or constructive, of any right on the part of Michael Kumler to this tract of land, at the time when he recovered and docketed his judgment, even if this be important. Sec. 54, p. 504, Pub. Stat., provides that every conveyance of real estate, &c., not recorded, shall be void against any judgment lawfully obtained at the suit of any party against the person in whose name the title to such land appears of record, prior to the recording of such conveyance. As to this tract, we see no reason why the lien of the judgment should not take precedence of any claim or right on the part of Michael Kumler. If Joseph Kumler has any homestead rights, these could probably be protected when a levy came to be made. At any rate, the statements in the pleadings do not authorize us to pass upon them. But as we think the order for judgment was wrong in reference to the tract of land in Scott county, it is reversed, and the case remanded for further proceedings.