Gregory v. Filbeck, 12 Colo. 379

Gregory v. Filbeck

12 Colo. 379 | Colo. | 1888

Rising, C.

Counsel for appellant base their contention for a reversal of the judgment upon two propositions: First, that the plaintiff cannot invoke the statute of frauds in her aid, for the reason that she was not a creditor of said Filbeck, nor such other person as is provided for by the statute, at the time the conveyance to Gregory was made; second, that there is no evidence that Gregory had any knowledge or notice of the fraudulent intent of Phillip Filbeck in making such conveyance.

*382In support of the first proposition it is urged that when the conveyance was made to Gregory the plaintiff had not commenced her action for a divorce, and the cause of action for which the divorce was granted did not then exist, and that, as she had no existing cause of action for divorce or alimony at the time the conveyance was made,'she could by no possibility be a creditor or other person provided for by the statute of frauds.

To bring a conveyance within the statute it must have been “made with the intent to hinder, delay or defraud creditors or other persons of their lawful suits, damages, forfeitures, debts or demands.” Gen. St. 1883, § 1526.

The wording of the statute clearly shows that it was not intended to limit the protection thereby given to creditors existing at the time when the conveyance is made. The object of the statute is to protect all persons against conveyances made to hinder or defraud them of their lawful suits, damages, forfeitures, debts or demands. The necessary and material thing to bring a case within the protection of the statute is not that the party invoking its aid should have an existing cause of action or demand at the time the conveyance is made, but that the grantor intended by such conveyance to hinder, delay or defraud creditors or other persons in the manner set forth in the statute. When such intention is made to appear, the conveyance, as between the grantor and the party seeking to set it aside, is brought within the statute. Bump, Fraud. Conv. (2d ed.) 308. Upon this principle is based the well-settled rule that if a party makes a conveyance of his estate with the intent to defraud of their debts persons who may subsequently become his creditors, such subsequent creditors may, under the statute, defeat such conveyance. Appellee became a creditor of Phillip Filbeck by her recovery of judgment against him for alimony. Livermore v. Boutelle, 11 Gray, 217, 220; Chase v. Chase, 105 Mass. 385. As such subsequent creditor she may invoke the aid of the statute.

This brings us to the consideration of the second propo*383sition. The question whether the conveyance was made by Filbeck with intent to hinder, delay or defraud the plaintiff, and was accepted by Gregory with such intent, ■was submitted to a jury, and the jury found by their verdict that said conveyance was made and accepted with intent to hinder, delay and defraud the plaintiff. The verdict of the jury in this case upon the question of fraudulent intent was accepted by the court, and the decree was based thereon. By so doing the court also passed upon the sufficiency of the evidence to establish such fraudulent intent.

We cannot agree with counsel for appellant in their claim that there is no evidence to sustain the finding upon the question of fraudulent intent. The manner of the witnesses in detailing the circumstances of the transaction, as well as such circumstances, must be taken into consideration in the determination of such question; and in this the court below and the jury had better facilities for reaching a correct conclusion than this court can have. But, looking at the evidence as we find it in the record, we have no doubt that this court is not warranted in reversing the judgment on the ground that the evidence is not sufficient to support the finding that the conveyance was made by Filbeck to Gregory, and accepted by Gregory, with intent to hinder, delay and defraud the plaintiff in the enforcement of any judgment for alimony which she might obtain in her suit for divorce.

The judgment should be affirmed.

De France and Stallcup, 00., concur.

Per Curiam.

For the reasons stated in the foregoing opinion the judgment of the district court should be affirmed.

Affirmed.

Mr. Justice Elliott did not participate in this decision, having tried the case below.