Hobson v. Ogden's Executors

| Kan. | Jan 15, 1876

The opinion of the court was delivered by

Brewer, J.:

This was an action to set aside a conveyance of a tract of land, and to subject the land to the payment of the debts of the vendor. Three questions are presented. It is insisted that the court erred in permitting an amendment of the petition after the commencement of the trial. As the petition stood it alleged the conveyance in 1870, the recovery of a judgment against the vendor in 1872, and that the conveyance was fraudulent and with intent to hinder, delay and defraud the plaintiff. It did not allege when the plaintiff’s claim accrued against the vendor, or even that it accrued before the conveyance. The court permitted an amendment to show that it accrued before 1868. This amendment was made before any testimony was received — was made upon the objection of defendants’ counsel that the petition did not state a cause of action without such an allegation. No suggestion of surprise, or application for postponement, was made. Indeed, it is not possible that the party was surprised, for the petition in the action in which judgment was rendered, in the same court, alleged as its cause of action an indebtedness created in 1867. Therefore the claim of error is rested upon' the simple proposition, that the court ought not at that time to have permitted such an amendment. We do not think the court abused its discretion in permitting the amendment; though we think as a general rule, and this does not seem an exception, that such amendments should be made upon terms. We cannot see that the defendants were materially injured by the amendment.

A second error is alleged in admitting a transcript of certain records of the circuit court of Warren county, Kentucky, the county in which all the parties resided. The principal part of this transcript consisted of verified answers of one of the defendants, the vendor of the land in controversy, filed in certain suits in that court, and were offered for the purpose of showing his financial condition which was stated by him in those answers. Of course, as admissions of one of the defendants, they were good against him. The remainder of the transcript, being an order of the court, and an opinion by its judge that a further disclosure was necessary, seem immaterial except perhaps as explaining the filing of an additional answer. We cannot see how either party was benefited or prejudiced by this portion of the transcript. -If error to admit it, it was because it was immaterial.

The principal error however alleged is, that the finding of the court is against the evidence. The court found that the conveyance was without consideration, and adjudged it void as against the plaintiff’s claim. The vendor and purchaser were respectively father and son. All the parties, as we have seen, resided in Warren county, Kentucky. The father was and for several years had been embarrassed, and unable to pay his debts. The conveyance was of nearly 800 acres of land in Kansas, including the 160 acres in controversy. The contract therefor, as defendants claimed, was made May 9th 1869, and the conveyance, which was by assignment and transfer upon the land-office receiver’s certificate, and not by separate deed,' March 23d 1870. The consideration as testified to, for none is stated in the conveyance, was $4,000, and was paid by the son in paying certain debts of the father. The son was an unmarried man, of from 23 to 27 years of age, and at the time of this controversy was clerk in the post-office at Bowling Green. Prior to that he had been clerk in the provost marshal’s office, whisky gauger, and for about a year carried on a grocery store in company with his brother. Prior to the conveyance he had never been assessed a dollar, and subsequently only to the extent of a mule valued at $75, and a horse valued at $100. Neither vendor nor purchaser testified in the case, but two sons of the vendor (brothers of purchaser) testified to the terms of the contract, and to the performance by the purchaser, giving names and amount of the father’s creditors whose debts were thus paid by the son. They also testified to the son’s having money at different times, and they with other witnesses testified to the young man’s industry, frugality, and correct habits. It does not appear that the purchaser ever came to Kansas to examine the lands before or after his purchase. Subsequently to the conveyance, the father came here, paid the taxes, filed the conveyance for record, made many inquiries concerning the land, and some statements concerning his intentions in reference to it, which appear to have been differently understood by those who heard them. This gives an outline of the testimony, and only an outline, for it comprises nearly two hundred pages of the record. The minor features of the case, the details of the testimony, it would be useless to attempt narrating. We have examined the entire testimony with care, and cannot say that the court erred in its conclusions. The silence of the parties to the transaction; the fact that the two principal witnesses for the defendants must necessarily have obtained much of their knowledge second hand; the conduct of the parties after the purchase in reference to the land; the successful and continued escape of the purchaser from the assessor; his employment, and apparent means of accumulation, during the years prior to the conveyance; the financial condition and embarrassment of the vendor, all tend strongly to support the conclusion of the court, that the conveyance was without consideration. At any rate, we do not see testimony in the record sufficient to justify us in reversing the judgment, and it will be affirmed.

All the Justices concurring.