182 P. 357 | Utah | 1919
Lead Opinion
This is an action to quiet title to lot 3, block 9, plat A, Farm-ington town-site survey, in Davis county, Utah.
The complaint alleges ownership in the plaintiff, and that defendant without right claims some interest in the property.
Defendant, answering, denies that plaintiff owns the property, and alleges ownership in himself by deed from one Mary Millard Robinson, owner of the property, made and executed April 10, 1916, since which time-defendant alleges he has been the owner and holder of the property, has paid the taxes thereon, and' is entitled to the use, occupancy, and possession of the same. Defendant prays that his title be quieted and for general relief.
In reply to this answer plaintiff admits the execution of the deed, but alleges that at the time of its execution and delivery the said Mary Millard Robinson was indebted to plaintiff in a sum in excess of $2,500-; that said deed was without adequate consideration, and was made to defraud her creditors, especially the plaintiff; that said deed was therefore fraudulent and void.
The trial court found the issues in favor of the defendant, and entered judgment quieting his title. Plaintiff appeals, and assigns as error certain findings,, of the court and the exclusion of evidence.
The foregoing facts are either undisputed or satisfactorily established by the evidence. It is contended, however, by appellant, if we understand its position, that, even admitting the above to be a correct statement of facts, nevertheless the trial court erred in its findings of fact, conclusions of law, and decree.
A serious question, however, is presented by respondent in his brief entirely separate and apart from any consideration of the evidence, and if his contention is sound it would be a useless expenditure of time and energy to undertake to determine the legal questions involved in any assignment of error relied on by appellant. Respondent contends that the pleadings of plaintiff do not state facts sufficient to constitute a cause of action. This is a question that can be raised at any stage of the proceedings, and whenever raised it is the duty of the court to determine it. The complaint, standing alone, undoubtedly states a cause of action. It is the simplest form of complaint in actions to quiet title, but the answer denies the allegations of the complaint in respect to plaintiff’s ownership of the property, and affirmatively alleges facts which, if true, show conclusively that the defendant is the owner.
As shown by the pleadings, the full substance of which we have heretofore stated, the plaintiff bases its claim of ownership on the mere fact that the grantor, Mary Millard Robinson, at the time of the conveyance to the defendant was indebted to plaintiff in the sum of $2,500 or more, and that the conveyance was without adequate or any consideration, was made to hinder, delay, and defraud her creditors, especially the plaintiff, and was therefore fraudulent and void. It is not alleged that the grantor was insolvent or in any manner financially embarrassed. For aught .the pleadings show she may have been abundantly able to pay her obligation to plaintiff without the property conveyed to the defendant. Besides this, the facts upon which the pleader should rely as constituting the fraud are not alleged. The allegation as to fraud is a mere conclusion which should be disregarded. Coal City Coal & Coke Co. v. Hazard Powder Co., 108 Ala. 218, 19 South. 392. The mere fact of a voluntary transfer of property by a debtor to a third person cannot, in our
Even if the action were in the nature of a creditors’ bill, as is usual in eases of this kind, in which the defendant was made a party together with the debtors L. C. Robinson and Mary Millard Robinson, the purpose being to set aside a fraudulent conveyance, the bill on its face should show that legal remedies have been exhausted.
“ * * =s it js tkg well-established general rule that a creditor cannot come into equity to obtain satisfaction of his claim out of property not reachable by legal process until he has exhausted his remedies at law and shown them to be unavailing, and he must allege and prove the fact of such exhaustion as a condition precedent to invoking the aid of equity.” (Italics ours.) 8 R. C. L. pages 19 and 20.
See, also, 15 C. J. page 1421. At page 1423 this author says:
“Where it is alleged that an execution has been issued and returned unsatisfied, it need not- be averred expressly that the debtor has no other property than that out of which the creditor seeks payment. Where the insolvency of the judgment debtor dispenses with the necessity for a return of an execution, such excuse, to be available, must be alleged in the bill. In such cases an averment that the judgment debtor is insolvent, or that he has no property left subject to execution, or any allegation equivalent thereto, is sufficient.”
In 12 Cyc., at pages 39 and 40, it is said:
“The bill should allege the issuing of execution, time when returnable, and actual return of sheriff thereon, and that the execution was returned nulla bona or satisfied in part only. Where the insolvency of a judgment debtor dispenses with the return of an execution, an allegation that the judgment debtor is insolvent, or that he has no property left subject to execution, or any allegation equivalent thereto, is sufficient.”
In Ogden State Bank v. Barker, 12 Utah, 13, at page 23, 40
“But even the omission of an allegation of insolvency at the time of the conveyance would not be fatal to the bill, because such insolvency is not a fact of jurisdictional consequence, and is not a condition of relief per se.”
This declaration unexplained might be construed as being in conflict with the views herein expressed. The declaration, however, must be considered in connection with the facts of the particular case. The bank filed a creditors’ bill against the debtor and his children, to whom he had made a voluntary conveyance of his property after a judgment against him. The bill alleged that the judgment had been obtained against the judgment debtor in an action for foreclosure; that the property had been sold for a sum less than the judgment; that a deficiency judgment had been entered, execution issued, and returned nulla bona. The bill also alleged that the judgment debtor was insolvent at the time the action was commenced. While under the facts of that case it is manifest that the declaration of the court above quoted was not necessary to a decision of the questions involved, nevertheless, it may be conceded that an allegation of insolvency of the debtor at the time of the conveyance is not absolutely necessary, where it is alleged, as in that case, that an execution issued had been returned nulla bona. If the opinion in that case can be construed to mean that facts in some form tending to show insolvency in a ease of that kind, or in a case like the one at bar, are not necessary to be alleged, we are constrained to hold that the enunciation of such a doctrine could not have been deliberate and intentional.
It is not necessary in support of our view to cite the numerous authorities that might be referred to without inconvenience. The doctrine must be well-nigh elementary that the title to property which a debtor has conveyed to a third person by voluntary deed is not thereby transferred to his creditor so as to enable him to maintain an action to quiet title as against the grantee. Something more must be shown than the indebtedness and the voluntary conveyance. And even if
Holding as we do the views herein expressed, it is wholly unnecessary to consider the facts déveloped at the trial, or any assignment of error upon which appellant relies. It may, however, be stated, in justice to the parties, that no question is seriously urged as to the good faith of the defendant James H. Robinson, the grantee of the property in controversy. That his brother, L. C. Robinson, justly owed him the debt for which the property was conveyed is not controverted by anything in the record. That L. C. Robinson and his wife, Mary Millard Robinson, both promised him on one or more occasions prior to the indebtedness to plaintiff that if it became necessary they would either convey to him this particular property, or other property to pay the debt, is likewise undisputed. That defendant, James H. Robinson, at the time he received the conveyance was ignorant of the fact that Mary Millard Robinson was financially embarrassed or indebted to plaintiff is well established by the testimony. It is also undisputed that at the time of receiving the conveyance the defendant indorsed on the note of L. C. Robinson a payment in the sum of $1,390, thus placing himself at a serious disadvantage in the event he should afterwards seek to avoid the transaction. Without attempting to pass at the present time upon the numerous questions discussed in the brief of counsel relating to the facts and legal principles deducible therefrom, we are not prepared to say that, even upon the merits of the case as determined by the facts, the defendant is not entitled to the judgment from which the plaintiff has appealed.
For the reasons stated, the judgment is affirmed at appellant’s cost.
Rehearing
' Appellant has applied for a rehearing of this canse, and assigns more errors and misapprehensions on the part of the court than are usually found in applications of this kind, and that is saying a great deal :
‘‘(1) Misapprehension by the court of the facts in said case.
“(2) Misapprehension by the court of the pleadings.
"(3) Misapprehension by the court of the law applicable to the case.”
Perhaps we should not have considered the facts at all. They had no bearing upon the case, nor did they in any manner influence our opinion. If we admit that every fact was incorrectly stated, and every conclusion drawn therefrom was wrong, the correctness of the judgment rendered would not be affected. The judgment was rendered on the pleadings uninfluenced by a single fact, the belief of appellant’s counsel to the contrary notwithstanding. Our sole reason, whether good or bad, for stating the facts and drawing conclusions was to present an intelligible history of the case and incidentally to show that, notwithstanding the defective pleadings, the case on its merits was such that this court would not be justified in reversing the judgment. As it now appears, our assumption of an unnecessary burden with good intentions was an instance of mistaken magnanimity.
But it is said the court misapprehended the pleadings. If it did, then appellant has presented substantial grounds for a rehearing. The pleadings are exceedingly simple. We have stated them in substance in the opinion handed down, and need not repeat the statement here. Appellant has failed to specify wherein the pleadings were misapprehended. No particulars are stated. We are left in the dark, and can only reaffirm our statement heretofore made.
This court is not prepared to hold that the mere voluntary transfer of property by a debtor to a third person operates ipso facto as a transfer of title to the creditor. Appellant says, in effect, that this proposition is axiomatic, is not controverted, and even expresses surprise that we should have so
The cases referred to in the application, Thompson v. Baker, 141 U. S. 648, 12 Sup. Ct. 89, 35 L. Ed. 889, and Ogden State Bank v. Barker, cited in our opinion, were not overlooked, neither were they disregarded. They shed no light whatever upon the real question. As regards the first-mentioned case the surprise is it was referred to at all.
But appellant says, as no counterclaim was filed by defendant, no reply on the part of plaintiff was required. That is not the question presented here. A reply is required when defendant files a counterclaim and is also admissible when “plaintiff claims to have a defense, by reason of the existence of some fact which avoids the matter alleged in the answer.’’ Comp. Laws Utah 1917, section 6590. Plaintiff’s
The criticism of the opinion by appellant’s counsel is at times almost drastic. It is characterized by a vein of irony. We have not allowed this to ruffle our feelings or disturb our equanimity. We have all at some time been practicing members of the bar, and are familiar with the exuberant sensation attendant upon success. We wish we could forget the uncharitable and unforgiving feelings we have sometimes experienced when disappointed in our hopes of victory. This is human, and to be expected. We are satisfied, however, that a calm, cool, and dispassionate consideration of the opinion, uninfluenced by matters not alleged in the pleading, will convince the fair-minded reader familiar with the elementary principles of pleading that the opinion is correct, and states the lav/ as it is and ought to be in this jurisdiction.
The application for rehearing is denied.