157 N.W. 488 | N.D. | 1916
This is an appeal from a judgment of the district court of Barnes county and is here for trial de novo.
Plaintiff bank as a judgment creditor of the defendant, James Collard, seeks to set aside and have adjudged void certain alleged fraudulent conveyances of real property executed and delivered by such defendant and his wife, Emma Collard, to the defendants Anton and Susan Bried. The same attorney who brought this action commenced a similar action for the Boyal Elevator Company against the same defendants, which action involved the same issues, and by consent of all parties the two actions were consolidated and tried as one action in the court below, but separate findings,' conclusions, and judgments were entered in each. No question is raised as to the right of these plaintiffs to maintain such actions, it being conceded or at least not questioned, that they each had, prior to the commencement of the actions, duly acquired a lien by judgment and levy of execution upon any interest held by the Collards in the real property in controversy. The crucial and in fact about the only issue raised by the pleadings is as to whether the deeds from the Collards to the Brieds were void as in fraud of Collards’ creditors.
The learned trial court, after hearing the testimony which was practically all oral, resolved such issue in favor of the defendants, and after duly considering such testimony as best we can from the typewritten record, we deem such findings in accord with the preponderance of the evidence, and we adopt them as our findings on this appeal. The record is quite voluminous, and it would serve no useful purpose to attempt a review of the testimony in this opinion, and we shall refrain from so doing.
We, however, deem it proper to here set forth the substance of the findings and conclusions of the trial court. They are as follows:
2. Defendants James M. and Emma A. Collard are husband and wife, each having full authority to represent the other in all the transactions involved herein.
3. That defendants Anton and Susan Fried are husband and wife with like authority of each to represent the other in all such transactions.
4. That on July 16, 1914, plaintiff bank duly recovered and caused to be docketed in Barnes county a judgment by confession against James M. Collard for the sum of $869.79, which judgment is of record and wholly unsatisfied, and which judgment was for an indebtedness incurred more than three years prior thereto.
5. That on or about August 31, 1914, an execution was duly issued •on such judgment, and on or about September 2, 1914, the same was returned nulla bona. On September 4, 1914, an alias execution was •duly issued, and after indorsing thereon his inability to find any personal property upon which to levy, the sheriff in due form levied upon all the real property in controversy, giving due notice thereof to defendant James Collard, which levy is still in full force.
6. That on June 22, 1911, the Collards, for a good and valuable consideration, executed and delivered to defendant Anton Fried a warranty deed to a portion of the land in controversy, to wit, the west half of the east half of sec. 6, twp. 143, B. 60 in Barnes county, which •deed was duly recorded on July 12, 1911. Such deed was given subject to a mortgage for $1,800, and a commission mortgage for $90 running to one Charles H. Smith. At the time this deed was executed and delivered and as a part of the same transaction, defendant Anton Fried gave to the Collards a contract agreeing to reconvey said land to them upon the payment of $4,050, with interest on $1,800 thereof at 7 per cent, and the balance of said sum of $4,050 was represented by a note for $2,250 in favor of Anton Fried. Defendant Collard retained possession of the land under such contract. Thereafter and on August 2, 1913, the Collards transferred by warranty deed the other lands described in the complaint, consisting of three quarters owned by James M. Collard, to the defendant Susan Fried, for an expressed consideration of $1. Such deed contained a covenant that such land was free from encumbrance, except a mortgage to the Middlesex Bank
7. That by virtue of the execution and levy hereinbefore mentioned "the plaintiff has a lien upon all such land for the sum of $80.09, being the balance of Collard’s equity aforesaid after satisfying the prior lien held by the Boyal Elevator Company, the plaintiff in the -companion action, and that upon the payment of such sum, the defendants Anton and Susan Fried respectively shall be adjudged to be the fee owners of such lands, free and clear of all claims asserted by the plaintiff bank.
From the foregoing findings of fact the trial court made -conclusions ■of law to the effect that the plaintiff bank is entitled to judgment against the defendants Anton and Susan Fried for the sum of $80.09, the balance thus due on the purchase price of such land, and that such sum be made a specific lien thereon, and, when paid, the same shall be applied upon the judgment against the Collards. Further, adjudg
In the light of the facts thus found by the trial court and which,, as before stated, we deem fully established by a preponderance of the-testimony, we entertain no doubt as to the correctness of the decision below. The law relative to alleged fraudulent conveyances is too firmly settled to require extended notice, and were it not for the elaborate brief and argument of appellant’s counsel wherein he has industriously cited numerous authorities from this and other courts which he strenuously insists are in point and controlling in his favor, we would feel justified in concluding this opinion with a mere statement of our conclusion that the facts disclosed in this record require an affirmance of the judgment. However, in view of counsel’s very earnest contentions, we deem it but fair to him and to his clients that we set forth at some length the reasons which impel us to overrule his contentions as to the rules of law applicable to the case.
We freely admit that if the facts were as contended by counsel we would readily agree with him as to the rules' of law here applicable. We may say here that we have no quarrel whatever with the rules enunciated in the cases cited. These cases are: Paulson v. Ward, 4 N. D. 100, 58 N. W. 792; Fluegel v. Henschel, 7 N. D. 276, 66 Am. St. Rep. 642, 74 N. W. 996; Newell v. Wagness, 1 N. D. 62, 44 N. W. 1014; Daisy Roller Mills v. Ward, 6 N. D. 317, 70 N. W. 271; Salemonson v. Thompson, 13 N. D. 182, 101 N. W. 320; Baldwin v. Short, 125 N. Y. 553, 26 N. E. 928; Morley Bros. v. Stringer 133 Mich. 690, 95 N. W. 978; Thompson v. Bickford, 19 Minn. 1, Gil. 1; North v. Belden, 13 Conn. 376, 35 Am. Dec. 83; Merchants’ & M. Sav. Bank v. Lovejoy, 84 Wis. 601, 55 N. W. 108. These cases no doubt were correctly decided on the facts before the court; but let us briefly distinguish the case at bar from the cited cases. In the case at bar the conveyances attacked were each made for the fair and reasonable value
Before leaving this branch of the case, we will briefly notice appellant’s principal authority — Paulson v. Ward, 4 N. D. 100, 58 N. W. 792, — upon which they so confidently rely as conclusive in their favor upon the proposition that the conveyances in question were fraudulent and void. A cursory examination of the opinion in that case will readily disclose that it is not in point. At page 108 of the opinion it is stated: “There is left little opportunity to doubt the intent on the part of the grantors to hinder, delay, and defraud their creditors. Did the grantee Patterson know of that intent when he took the conveyances? The trial court answers in the affirmative.” The opinion goes on to give reasons why the trial court’s conclusion was correct, and at the close of the opinion at page 112 they say: “It is clear that he (Patterson, the vendee) participated in the purpose” (to hinder, delay, and defraud the creditors of the Wards and Hall). Manifestly, such case is not an authority in a case like the one at bar, where neither the grantors nor the grantees were actuated by such a fraudulent intent. The same may be said as to each of the other cases cited, and further comment on them would be wholly useless.
The fact that the respondent Pried was a creditor of Collard places him in even a more favorable light than a purchaser who was not a creditor, for even if the record disclosed that Collard, in making the conveyances, was actuated by an intent to defraud some of his creditors, and Pried had knowledge of this, the law would not charge him
But as stated above, in the case at bar the record discloses not only that Fried had no knowledge of any such fraudulent intent on the part of the vendors, but, on the contrary, that no such intent was shown either on the part of the vendors or the vendees. The lands were heavily encumbered, and the Collards were anxious to sell the same and satisfy the indebtedness against it. A price of $30 per acre, the fair and reasonable value, was agreed upon, or $19,200 for the section, and the aggregate amount of the liens thereon, together with the sum owing to Fried by the Collards which it was agreed should be satisfied out of the purchase price, was approximately $17,319, leaving a balance due Collard from Fried on such purchase price of $1,881, which balance had not been paid. This balance the trial court held should be apportioned between the plaintiff bank and the Boyal Elevator Company, plaintiff in the companion action, according to the priority of their respective liens, and the latter’s claim has been fully satisfied.
It is, among other things, now claimed by this • appellant that the deeds should be adjudged to be fraudulent and void as alleged in the
In arriving at our conclusion on the facts we deem it proper to state that we do so independently of the trial court’s findings; although such findings, being based upon oral testimony, are of necessity entitled to some weight in this court. Counsel for respondent is clearly in error, however, in contending for the rule announced in Jasper v. Hazen, 4 N. D. 1, 23 L.R.A. 58, 58 N. W. 454; Bergh v. John Wyman Farm Land & Loan Co. 30 N. D. 158, 152 N. W. 281; Semple v. Burke, 26 N. D. 201, 144 N. W. 103; State ex rel. Trimble v. Minneapolis, St. P. & S. Ste. M. R. Co. 28 N. D. 621, 150 N. W. 463; Dowagiac Mfg. Co. v. Hellekson, 13 N. D. 257, 100 N. W. 717, and other like cases, holding to the effect that the findings of the trial court have the force of special findings of a jury. These cases have no relevancy to appeals triable de novo. Jasper v. Hazen was decided long prior to the enactment of the trial de novo statute, and the other cases were not here for trial de novo, but merely for review of errors. The rule as to the weight to be
Counsel for appellants finally insists that Emma A. Collard should at least be held to have a right to purchase these lands back from the Erieds under the so-called option contract, exhibit P-1. The contract shown by such exhibit is very ambiguous, and fails to state the terms of the agreement; it merely stating that the Erieds agree to give to Emma A. Collard a crop contract covering these lands, such option being good only for one year from its date, — December 15, 1913. In the light of the record we are unable to hold that Emma A. Collard ever availed herself of the option aforesaid by complying with the terms and conditions thereof, and we are agreed that the learned trial court properly reached its conclusion that the only claim held to these lands by the Collards was and is a claim to the balance of the purchase price remaining unpaid.
Eor the above reasons the judgment below was correct, and the same is in all things affirmed.