Gwyer v. Figgins, 37 Iowa 517

Gwyer v. Figgins

37 Iowa 517 | Iowa | 1873

Miller, J.

1. pleading. The questions properly before us on the record' in this case arise upon the petition and answer. A replication traversing the affirmative statements ^ ^he answer was filed, but the answer not containing the allegations of set-off, counter-claim, or cross-demand, no reply was required or proper. Revision, § 2895 ; The Davenport Savings Fund Association v. The N. A. Insurance Co., 16 Iowa, 74; Smith v. Milburn, 17 id. 30; Clark v. Cress, 20 id. 50; Savery v. Browning, 18 id. 246; Adams v. Peck, 14 id. 508. So that the filing of the replication did not in any respect affect the burden of proof or the case. The case stands, in all respects, the same as if no replication had been filed.

a. fraudulent conveyance. II. It is insisted by the plaintiff that the admission of the defendants, in their answer, to the effect that the property conve7e(i to Spittler by appellant and her husband, ag ^ consideration for the land conveyed to her by Spittler, was owned exclusively by her husband, is sufficient to entitle the plaintiff to the decree rendered in his favor. We think otherwise. Even if this be taken as an admission that the conveyance to the appellant was without consideration (which it is not), still, this alone does not render the conveyance void. A mere voluntary conveyance is not fraudulent per se as to existing creditors. Carson v. Foley, 1 Iowa, 524, and cases cited on p. 527.

With the admission in the answer that the property conveyed to Spittler, in consideration for the land conveyed to the appellant, was owned by her husband, George Figgins, it is *521alleged that the property thus conveyed was the homestead of Elizabeth Figgins and her husband, purchased 'with the proceeds of a former homestead; that the husband was indebted to her in the sum of $500, of her own separate funds which, long before the plaintiff’s claim accrued, she had placed in his hands; and that in consideration that she would join in the conveyance of her homestead, and also in consideration of said indebtedness from her husband, the deed to the land in controversy was made to her. All intention or purpose of defrauding the plaintiff is denied.

If the property conveyed to Spittler was the homestead of the defendants, it was, even in George Figgins’ name, not liable to be taken to satisfy the judgment of the plaintiff, so far as appears on this record. A conveyance of the homestead by the husband alone would have been of no validity. Alley v. Bay, 9 Iowa, 509. It was the homestead of the wife as much as that of the husband, although the legal title thereto was in him, and the relinquishment of her homestead right, by joining in the execution of the conveyance thereof, was a good and valuable consideration, which, in the absence of fraud, was sufficient to support the conveyance to her of the land in controversy, at least to the extent in value of the homestead right. There is nothing in the case to show that the land exceeds the value of that right.

3. Pleading. III. The plaintiff submitted interrogatories with his pleading, which he required to be answered under oath by the defendants. The answers to these interrogatories are entitled to be read in evidence as a deposition. Not only that which is merely responsive to the interrogatories, but the party answering may state any new matter concerning the same cause of action, which may likewise be read as a deposition. Revision, §§ 2985, 2986. The only evidence, therefore, which we have is found in the answer of the defendants. Upon this evidence, the alleged fraud is not proved, but the bonafides of the transaction established.

*5224 fraudulent conveyance. *521IV. Again, the plaintiff has not shown himself entitled to relief in equity even if the conveyance to the appellant was *522B^lown to be fraudulent. He bas not shown th.at his remedy is not perfect at law, against George Figgins. It is alleged in the petition that the plaintiff caused execution to be issued on his judgment, which was rendered nulla bona. This is denied in the answer, and there is no proof whatever in support of the allegation. The current of authorities hold that such a return is necessary to enable the plaintiff to come into a court of equity and ask its aid to set aside an alleged fraudulent conveyance. It has been held, however, by this court, that, although such return of nulla bona may, in legal contemplation, be the more satisfactory method of establishing the fact of insolvency, yet, that such fact may be proved by other means and in other ways. Postlewait et al. v. Howes et al., 3 Iowa, 365, 383. It is not proved in any manner in this case.

The appellant is entitled, on the case as submitted, to a decree dismissing plaintiff’s petition on the merits, and for costs, which is directed to be rendered in the court below, or, if appellant so elects, such decree will be entered here.

Reversed.