13 S.D. 204 | S.D. | 1900
This is an action to subject certain realty, record title to which is in defendant Mary O'Leary, to the satisfaction of a judgment against her husband, on the theory that it was conveyed to her with intent to delay and defraud her husband's creditors. Plaintiff appeals from a judgment in favor of the O'Leary’s, and from an order denying a new trial.
It is contended that the evidence is not sufficient to justify the decision. The only material issues raised by the pleadings are whether the transfer from Con O’Leary to his wife was made with intent to delay and defraud bis creditors, and whether the wife had knowledge of such intent. Even where the husband has a fraudulent intent, the transfer will not be defeated unless the wife has knowledge of it. Williams v. Harris, 4 S. D. 22, 54 N. W. 926. In these cases the question of fraudulent intent is one of fact, and not of law, nor can any transfer be adjudged fraudulant solely on the ground that it was not made for a valuable consideration. Comp. Laws, ¡j 4659. The consideration is a circumstance to be considered in connection with all the evidence in ascertaining with what intent the transfer was made, but is not in itself an essential element of a fraudulent transfer, While ihe decision of the
It being thus established that the transfer was not made with fraudulent intent, it is unnecessary to consider the effect of payments by the grantee after proceedings were commenced by the plaintiff to enforce its claim against the land in contro
A deed from O’Leary and wife to’ a third party, and one from him to Mrs. O’Leary, each executed July 1, 1893, and purporting to convey land conceded to be the O’Leary homestead, were excluded. Plaintiff was not prejudiced by their rejection, because Con O'Leary was permitted to testify, on cross-examination, that the homestead was conveyed to the wife without any consideration. If the conveyance of this absolutely exempt property was a circumstance of -any weight whatever in determing the intent of the parties with respect to the alleged fraudulent transfer which was made July 29, 1893, plaintiff had the benefit of such circumstance by reason of other undisputed evidence. The judgment of the circuit court is affirmed.