49 Colo. 60 | Colo. | 1910
delivered the opinion of the court:
This being a joint writ, plaintiffs in error are in position to be heard only upon that portion of the decree, and such of the rulings of the court, as affect them jointly. They are not jointly interested in the
Though the amendment to the complaint contains an allegation that the relief sought is under $2,000, it is doubtful if such an averment, which plainly refers to a judgment plaintiff asks .as alimony, shows that the court had jurisdiction of the controversy over the property conveyed, as there is no allegation that its value does not exceed the sum of two thousand dollars. If the value of the property is the test of the jurisdiction, and this apparently was admitted, the court did not have it; because, even if the pleading had the proper jurisdictional averment, the proof is that the property exceeded in value $4,000.00, and such proof is sufficient to divest jurisdiction, which, if the proper averment was in the complaint, conferred it in the first instance. The jurisdictional defect, therefore, makes void the decree of the court which set aside the conveyance and annuled the deed.
Aside from the want of jurisdiction, the amendment to the complaint does not state a cause of action; and, if it did, the proof is wholly insufficient to sustain the allegation of fraud. The pleading does not charge, nor does the proof show, that the grantee had knowledge of, or participated in, the alleged fraudulent intent of the grantor. The only
Defendant’s evidence on this issue did not aid plaintiff’s case. Indeed it showed, without contradiction, that the property in controversy was bought by the mother, arid all of the purchase price that was paid -therefor was her money. Title was taken in the name of her son for convenience and by mutual arrangement. He was her only child and in case of her death would be her sole heir at law. She was quite'willing that he should have the property, and it was her intention, after the marriage of her son with the plaintiff, that he should have the control and disposition of it. There is not a particle of evidence that at the time defendant, Mrs. MeKnight received the deed, she knew that this divorce action was contemplated, or that there was any intent on the part of the grantor to commit a fraud on the plaintiff, or that she participated in it. On the contrary she, as grantee, took this conveyance, believing and, as she says, knowing that the deed merely evidenced what the fact really was, that the property was hers. She assumed and agreed to pay the existing encumbrance thereon, amounting to more than $2,500.00. We cannot uphold the findings or decree as to this conveyance. They are not
The sole object of the amendment to the complaint was to set aside an alleged fraudulent conveyance of real property, so that it might become subject to a possible judgment for alimony which plaintiff might recover in the action. The doctrine in this state is that before a creditor will be permitted to go into equity to set aside a fraudulent conveyance, he must' first have recovered a judgment. — 5 Enc. P. & P., p. 469; Barnes v. Beighly, 9 Colo. 475; Neuman v. Dreifurst, 9 Colo. 228; Burdsall v. Waggoner, 4 Colo. 256, and Allen v. Tritch, 5 Colo. 222. Canceling a fraudulent conveyance is an exercise of equity jurisdiction. Whether this doctrine militates against the joining in a divorce action, as was done here, the ancillary cause of action to set aside an alleged fraudulent conveyance of the defendant therein, we are not required to say. There was no demurrer on the ground of misjoinder of parties defendant, or of improper uniting of causes of action, and the improper misjoinder and uniting, if any, appeared on the face of the amendment. In discussing this point in 7 Enc. P. 6 P., p. 83, at note 2, it is said that “In the same petition the wife may ask for divorce and alimony, and also allege all the facts necessary to sustain a creditor’s bill to set aside a conveyance made by the husband to defeat her claim for alimony”; and to this proposition cases are cited, from other jurisdictions. But regardless of the propriety or impropriety of the practice here pursued, and sanctioned by the trial court, and assuming for our
Affirmed in part and reversed in part, and cause remanded.
Chief Justice Steele and Mr. Justice Musser concur.