151 N.W. 287 | N.D. | 1915
This is an action to determine adverse claims to real estate. Its direct object is to have the lien of an attachment set aside. This attachment was issued in an action not against the plaintiff and respondent, but against her father and grantor, Thomas McKillip, and the question to be determined is the validity of the conveyance to his daughter, and whether the land on which the attachment was levied belonged to the father and debtor, Thomas McKillip', or to his daughter, the plaintiff and respondent herein. The land was deeded to Nora McKillip, on the 15th day of March, 1910, and the attachment was levied on the 19th day of October, 1912. The question is, Was or was not the deed of March 15, 1910, a valid deed? In other words, was it issued for a good or valuable consideration, and was it free from actual or constructive fraud ? The trial court found that it was, and we are asked upon this appeal to reverse its findings.
The record «shows that in 1909 the plaintiff and respondent’s father
The burden of proof is, of course, upon the defendant and appellant to prove its allegation of fraud, and such proof must be clear and convincing. Englert v. Dale, 25 N. D. 587, 142 N. W. 169. We find no such proof in the record before us. The deed, it is true, was not recorded until the 1st day of June, 1912. The writ of attachment, however, was not issued until the 19th day of October, 1912, nor was the action in which it was issued begun until such date. At the time of the execution of the deed to his daughter, the liability of Thomas McKillip to the defendant, the Farmers’ State Bank, was that of an indorser merely, and there appears to be nothing unusual in an old man deeding his homestead to his daughter, who has come to live with him and is taking care of him, even though he happens to be an indorser on a promissory note of $350 which he has sold to a bank, especially where he has some $500 worth of personal property which the record shows in this case to be the fact, and makes an agreement with his daughter for an interest in the crops for two years with which to take care of his possible indebtedness. There can be no doubt that the plaintiff, Nora McKillip, came from St. Paul to take care of her father, who appears to have been an old and feeble man and we are not prepared to
It may be true that after tbe execution of tbe deed and in April, 1912, tbe plaintiff’s father disposed of bis personal property, but what, may we ask, bad tbe plaintiff to do with tbis % If she and her grantor were free from fraud or from fraudulent intent at tbe time of tbe original conveyance, and there was a valid consideration for such conveyance to her, tbe subsequent acts of her grantor are immaterial. Tbe defendant, it is to be remembered, was her father’s creditor, and not her own.
So, too, it is well to remember that tbe land was tbe homestead of tbe plaintiff’s father, and did not exceed $3,500 in value. It was therefore exempt from execution under tbe provisions of § 5049 Kev. Codes 1905, § 5605, Compiled Laws of 1913. Tbe courts have repeatedly held that it is not a fraudulent act for a debtor to transfer to bis wife or daughter exempt property to which bis creditors could not have looked for tbe satisfaction of their claims. “It was property,” said tbis ■court, in tbe case of Olson v. O’Connor, 9 N. D. 504, 510, 81 Am. St. Rep. 595, 84 N. W. 359, “to which tbe lien of tbe judgment did not attach, and was beyond tbe reach of an execution issued thereon. It was not possible to defraud bis creditors by transferring tbe title to bis wife, for it was property to which they could not look for tbe collection of tbe claims. For these reasons, even in a proper case, the transfer was not subject to attack.” See also Dalrymple v. Security Improv. Co. 11 N. D. 65-70, 88 N. W. 1033; Baldwin v. Rogers, 28 Minn. 544, 11 N. W. 77; Blake v. Boisjoli, 51 Minn. 296, 53 N. W. 637. “Tbe homestead is something toward which tbe eye of tbe creditor need never be turned. It is an element which may never enter into bis calculations in bis efforts to collect bis debt.” Monroe v. May, 9 Kan. 476. “A debtor cannot commit a fraud upon bis creditor by disposing of bis homestead. A debtor in tbe disposition of bis property •can commit a fraud upon bis creditor only by- disposing of such of bis property as tbe creditor has a legal right to look to for bis pay.” Hixon v. George, 18 Kan. 253. See also Wilson v. Taylor, 49 Kan. 774, 31
The judgment of the District Court is affirmed.