9 Wyo. 481 | Wyo. | 1901
This suit was brought by Mrs. Blackburn, guardian of Lucy S. Terrill, a minor, and B. A. Currie, creditors of James Terrill, to set aside certain conveyances as fraudulent. They allege that Terrill, in pursuance of a conspiracy with one Mary Personette to defraud his creditors, conveyed to her, without any valid consideration whatever, all his property. That within a short time after such conveyance they intermarried, and she immediately proceeded to sell all his personal property at public auction. That afterward, in pursuance of the same purpose, she conveyed the land, without any valid consideration, to her son, Wilson B. Personette.
The plaintiffs in error, Metz and Lonabaugh, upon their own application, were made parties defendant, and allege that they are the owners of the land, having purchased it from Wilson B. Personette. They further set
After the evidence was heard, the plaintiffs, by direction of the court, amended their petition by charging that, at the time of the conveyance to Lonabaugh, who was a practicing lawyer, he agreed to appear, and defend the attachment suits of the plaintiffs against the land, and to pay the Currie claim in case it should be determined to be a valid lien upon the land; that he had suffered the same to go by default, wherefore he and Metz were es-topped from questioning the validity of the judgment in that suit.
The court stated in writing its findings of fact and conclusions of law, decreed in favor of the plaintiffs and the cross-petitioner, and directed that Metz and Lonabaugh convey the land to Terrill, and that it be sold to satisfy plaintiffs’ claims.
Upon the hearing, the plaintiffs in error, Metz and Lonabaugh, introduced in evidence a paper purporting to be a marriage contract between James Terrill and Mary Personette, and which is as follows:
“July 23, 1896, 6323 St. Lawrence Avenue, Chicago, Illinois.
“This is to certify that I, James Terrill, of Banner, Sheridan County, State of Wyoming, has and do propose marriage to Mary Personette, of Chicago, Cook County, State of Illinois, and offer her, the said Mary Personette, as a marriage settlement, to give to her in fee simple and to be legally hers in her own right, the whole of my ranch, situated in sections thirty-one, thirty-two, and thirty-three in township 54, and one-quarter section in section 5, township 53. Each section being in range 83, and known as the Terrill ranch, on which is located the post office of Banner, all above-described real estate being in Sheridan County, State of Wyoming, together with all improvements, machinery, grain, and stock thereon or*502 belonging thereto. To be legally hers forever in her own right to do whatsoever she may please with, free from any legal interest that marriage might entitle me to, and after marriage I hereby relinquish all interest that a husband might claim, and furthermore declare that there are no liens, claims, or incumbrances of any kind against the said property except a mortgage of about fifteen hundred dollars; and the said Mary Personette, in consideration of the above-described settlement and mutual love, accepts the above offer of the above said James Terrill, and agrees to marry him some time during the month of this coming September, 1896. This being an antenuptial contract between the above said James Terrill and the above said Mary Personette, which we both hereto sign, and she agrees to relinquish her right in any other property he may have. James Terrill, Mary Personette.
This paper was in the handwriting of Terrill, and it is not questioned that the signatures were written by Mrs. Personette and himself respectively. But Terrill testifies that it was prepared and signed, not as purported on the 23d day of July, 1896, but about the 20th of February, 1897, long after the marriage, and for use in defeating the attachment suits which had been commenced a short time before. The court found that it was executed as stated by Terrill about the 20th of February, 1897.
- All the evidence shows that these two persons met about July 10, 1896, he having gone to her house for a meeting with her, arranged by a so-called matrimonial agency, with which he had been corresponding. He avers in his cross-petition that they became engaged on July 23, and he testifies that the understanding was that she was to come to Sheridan in September, and if she was pleased, they would be married. In her deposition, taken some time before the trial, and her attention not being called by any question to the fact that Terrill would deny the execution of a written contract at that time, she states that he offered to deed her the ranch while he was in Chicago in July, but that she refused to accept it, not
Furthermore, in his correspondence with Metz instructing him how to proceed in contesting the Currie and Blackburn claims, Terrill frequently referred to the contract as made prior to the marriage. In his letter of February 22, 1897, he says: “To begin with, my wife and I had a marriage contract signed the 23d day of July, 1896, that gave her exclusive title and ownership of all the property, a fact that will or ought to defeat both notes against the property. * * * In that marriage contract I relinquished, as a husband, all rights in the lands, etc., after marriage to my wife. A copy of the contract will be sent to you. If it ought to be put on record, let us know.” In his letter of February 23, he says: “I inclose you a certified copy of our contract for your use if necessary.” And in a postscript to the same letter, he says: ‘£ Inclosed is two dollars for recording marriage contract.” In his letter of February 27, he urges as one of the reasons why these suits ought not to be maintained: 1 ‘ Because I have no legal claim or right in the property which can be substantiated by the marriage contract and the conveyance to Mr. Personette. ” Again, in his letter of March 1 he says : “I had attorneys here to examine the laws of Wyoming, and they said nothing can get a judgment against the contract, and the deed following it, and the marriage being consummated, and her being innocent of knowing anything of my debts, and she had a right to sell, or dispose of it as she pleased. ’ ’ March 6, he writes : “ It is simply folly and expense when the case will eventually settle back to the proper place, the marriage contract.” In these letters he repeatedly calls attention to the desirability of taking his own and his wife’s depositions to the facts, and on March 8 he writes
Mr. Menardi, the notary public who drew the deed from Terrill to Mrs. Personette, about September 10, 1896, testifies that Terrill said to him at that time that the actual consideration for the deed was the fulfillment of the marriage contract which he had previously entered into with her; that it was a written contract, and that by its terms he had agreed to turn over his entire property to her in consideration that she would marry him.
This evidence, coupled with the fact that the contract itself in the handwriting of Terrill is produced upon the trial, and that it was acted upon and performed by the delivery of the deed, and the marriage of the contracting parties on September 17, in our opinion, overwhelmingly contradicts and refutes the statement of Terrill that it was executed for a fraudulent purpose long after the marriage on February 20, 1897. Upon the other hand, there is, as we believe, no single circumstance which corroborates Terrill’s statement. The fact that the description of the land is general in the contract, and not particular and
Terrill, in his cross-petition, avers that the conveyance of the real estate by him to Mrs. Personette was not executed on account of any marriage contract, and that such conveyance had nothing whatever to do with the marriage contract or the marriage; but that, his will being completely controlled by her, he executed the deed on September 10, and delivered it to her on September 17, solely at her dictation and without any consideration whatever. He alleges, however, that while in Chicago, he stated to her fully his situation, his property, his debts, including the indebtedness to Currie and to his daughter, and his desire to marry again, chiefly in order to secure a mother’s care for his child; that she 'represented to him that she was of good character and family, that she had $200,000 in her own right, and large experience in business, would care for and educate his child, pay all his debts and invest money for him and place him in business, at the same time professing great affection for him; and that relying upon her representations, he entered into an engagement with her whereby they were to be married at a time to be mutually agreed upon. He does not allege that by this engagement he was to convey to her any property whatever. In testifying as a witness in the trial, he stated as follows in reply to questions of his counsel: —
! ‘ Q. What, if anything, occurred between you and*506 Mrs. Personette on the 23d day of July, 1896 ? Ans. Nothing, sir, only I left to come home. Q. What, if any, proposition of marriage had been made at that time and prior to that time by you ? marriage arrangement ? Ans. There was no arrangement. There was just an understanding that if she came out and was pleased, the matter would be consummated.”
He further testifies that she came out, and he showed her the property, and when asked what occurred on or about the 10th of September, he replied : “When I consulted her and she was satisfied and very well pleased, I proposed marriage, and then she, the first time, she ever proposed deeding any property to her.”
He further states that her request surprised him, and that he consulted his friend, Mr. Menardi, and others about it, and that he plead with her to let him handle the property, but ‘ ‘ she insisted, and I finally got Menardi to make a deed, but still hesitated, and finally, with her promises and the attachment that existed, I finally made the deed.”
When questioned by his counsel as to what promises he referred to as causing him to make the deed, he answered : ‘1 She promised she would pay off these claims, establish a fine business, live in fine style in Chicago, and care for my child. ’ ’
He was subsequently asked by his counsel: “ Q. Explain to the court what made you sign that deed. How did it come you signed that deed ? Ans. It was the fascination and infatuation I had toward the woman. She acted lovingly and affectionately, and said it would break her heart if she went back without me. It was a kind of control or spell she had — something I don’t understand. ’ ’
The court found upon this subject, however, that the consideration for the conveyance was her representations and promises to the effect that she was greatly in love with him, would marry him, and make him a loving and faithful wife, would care for the child, and make it a good home; that she had large means, and would pay off hi§
But the court further found that all of her representations which induced the making of the conveyance to her were false, except her promise to marry him, and that she permitted the marriage ceremony to be performed, uniting her to Terrill, not in good faith, but as a means of defrauding him of his property; and reached the conclusion as matter of law from the facts so found that the conveyance was fraudulent, and conferred no title upon her as against the right of Terrill to the lands.
We are of the opinion that the finding of fact is not sustained by sufficient evidence, and unless it be construed as a finding that the marriage was a mere formal ceremony not consummated by subsequent cohabitation, which the evidence conclusively rebuts, it does not sustain the conclusion reached by the court. While there is evidence tending to show that a strong personal affection had sprung up between the parties, yet we think it is apparent that
The court also finds that she represented to him, and made him believe, that she would take care of and educate the child, and make it a good home, and that she did not perform this promise, and did not intend to do so. But the child was in the custody of its guardian, Mrs. Blackburn, and there is no evidence whatever in the record that Mrs. Terrill was ever requested to take it, or had any opportunity to do so. Indeed, on February 27, 1897, some five months after the marriage, in a letter to one W. O. Dimmock, Terrill states that he and his wife had expected to take the child at the beginning, and that he blamed himself for consenting to let it remain for a while with its relatives in opposition to her judgment.
The finding of the court that she permitted the marriage ceremony to be performed not in good faith, but as a means of defrauding Terrill of his property, is not only not sustained by the evidence, but is entirely inconsistent with numerous circumstances in the case, about whose existence there is no question. Not only was the marriage ceremony performed, but they lived together as husband
But independent of any question of the mere weight of the evidence, we do not think the findings of fact sustain the conclusion reached by the court, that the conveyances conferred no title upon Mrs. Personette as against the right of Terrill to the lands. All the evidence in the case shows that the transfer was made in consideration of her promise of marriage. Such transfers stand upon somewhat different ground from other conveyances, owing to the fact that, if set aside, there can follow no dissolution of the marriage, and the parties cannot be placed in their former positions. Prewit v. Wilson, 103 U. S., 25.
And, therefore, as the marriage was the consideration for the conyeyance of the property, and as it was fully consummated by the subsequent cohabitation of the parties for several months, and is neither void nor voidable, there is no ground for setting aside the conveyance. Barnes v. Barnes, 110 Cal., 420.
Bat it is urged by counsel for defendant in error, and it seems to have been the view taken by the court, that the failure of Mrs. Terrill to perform certain promises, which the court finds accompanied the promise of marriage, and, in part, induced the conveyance to her, furnishes sufficient reason for setting aside the conveyance. As already observed, the proof of any-such promises is very meager. Accepting Terrill’s testimony alone as presenting the true state of facts, it appears that in Chicago they talked the matter over repeatedly, and, without any engagement of marriage, simply arrived at an understanding that she should come to Sheridan, and if she found things satisfactory, they would be married. That having expressed herself satisfied, he then proposed marriage, and she, for the first time, proposed the conveyance of any property to her. According to Terrill’s account, therefore, the promises and representations, in Chicago, were not in view of any conveyance of property, but of marriage simply. In his cross petition, verified by his own affidavit, he alleges that the conveyance had nothing whatever to do with the marriage or any marriage contract whatever. And he testifies that he signed the deed by reason of her control over him. But he also testifies that ‘ ‘ with her promises and the attachment that existed” he finally made the deed. And the court found that the promises were, in
But it is contended that the conveyance' in question should be set aside because fraudulent as to Terrill’s creditors. Upon the fundamental proposition that, by reason of this conveyance, he became insolvent and unable to discharge the claims of the plaintiffs, we are unable to reconcile certain material findings of the court. It was found, as already observed, that the marriage contract" produced in evidence by plaintiffs in error was not entered into prior to the marriage, but was manufactured some months afterward. Excluding this contract from consideration, we are unable to find any evidence in the record sustaining the finding of the court upon this subject. The finding is that Terrill conveyed the real estate in question, of the value of $6,000 and his personal property of the value of $2,000, to Mrs. Pensonette on September 17, 1896, and that at the time of making such conveyance the only property possessed by him not conveved to her was an interest in a piece of land of the
But conceding, as we think the evidence shows, that by the contract and the subsequent marriage and transfers of property in pursuance of its terms, Terrill became insolvent and unable to pay his debts, we do not think the conclusion of the court is sustained that the conveyance must, as to creditors, be deemed fraudulent. Where a conveyance is without consideration, very slight evidence will generally be deemed sufficient to avoid it as to creditors. But in this case the conveyance was made in consid
It must appear, first, that it was executed by the grantor with intent to hinder, delay, or defraud his creditors, and in the second place that the grantee participated in the fraud. In his cross petition, and in his testimony upon the trial, Terrill states that the arrangement was that Mrs. Personette was to pay off all his debts, she claiming to have ample funds for the purpose, and that he had informed her fully and in detail what his indebtedness was. In this view of the evidence, and it is the view adopted by the court, there was no purpose whatever upon the part of Terrill to hinder or delay the collection of any claims against him, but he supposed he had fully provided for the prompt payment of all of them. Indeed, the court does not find that the conveyance was made with any intent upon the part of Terrill to hinder, delay, or defraud his creditors. We think such a finding was necessary to support a j udgment in favor of the creditors. In the Am. & Eng. Ency. of Law, the rule is stated as follows: ‘ ‘ The next and most essential requisite of a fraudulent alienation is that it should be made with a covinous intent. The fact that creditors may be delayed or hindered by a conveyance is not sufficient of itself to vitiate the deed if this element be lacking. Inconvenience to creditors may result from a conveyance that is fair as well as from one that is fraudulent, for every disposition of a debtor’s property, however valuable the consideration and honest the motive, diminishes the fund out of which payment of his liabilities can be enforced.
‘£ Hence the validity of the conveyance is to be determined, not by its effect, but by the intention with which it is made. ’ ’ And the author immediately adds : ‘s But a fraud such as will authorize a creditor to set aside a conveyance made by his debtor must be one directed by the debtor against his creditors, and not one practiced by third parties against the debtor. If a debtor has been overreached in a transaction, he may avoid it himself, but
We have considered this case thus far as if the rights and interests of the original parties to the transaction were alone involved, and leaving out of consideration the connection of the plaintiffs in error, Metz and Lonabaugh, with the property in controversy. As matter of fact, plaintiffs in error purchased the land in March, 1897, paying for it to Mrs. Terrill or her son $3,000 in cash, assuming the payment of the bank mortgage of $1,620 with some accrued interest and other small amounts, which made the consideration paid or assumed by them, in the neighborhood of $5,000. The property is shown to have been worth about $6,000. They also bought with notice of the claims of Currie and Mrs. Blackburn, agreeing that if the Currie claim should be found to be a valid and subsisting lien against the property, to protect the vendor against the same. It is charged and so found by the court that the purchase by Metz and Lonabaugh was not in good faith, and that they took no title as against Terrill or his creditors. In the absence of such proof of fraud as would avoid the conveyance as between Terrill and his wife, and we think it is clear there is no such proof, it is difficult to conceive of a case where it would be voidable as to subsequent purchasers for a valuable consideration. But there is a great deal of evidence in the record directed to the question of the good .faith, especially of Metz, in making the purchase. It is charged by Terrill in his cross-petition that Metz, pretending to be his attorney, without his knowledge or consent, filed an answer for him in this action, not in the interest of Terrill, but for his own corrupt purposes and to defraud Terrill out of the land in ques
On March 15, a few days after the letters referred to were written, Lonabaugh purchased the land for himself and Metz. It is charged, and the court found, that the purchase was not made by them in good faith, that the transfer was fraudulent as to Terrill and his creditors, and decreed that they convey the property to Terrill. The
Under these circumstances there is no apparent reason why Metz or Lonabaugh or any one else might not buy the land free from any imputation of fraud or bad faith. While it was common talk in the community, in which they perhaps joined, that Terrill was acting foolishly in his marriage and in parting with his property, there is no intimation in the evidence that either Metz or Lonabaugh had any other information about the matter than was in possession of the community generally.
But in addition to the facts already referred to, about the same time, and some two or three months prior to the purchase by Lonabaugh, Terrill joined with his wife in a conveyance of the land to Wilson Personette, both of them executing the deed. In March, Lonabaugh visited the Terrills at their residence in Chicago, meeting with both Mr. and Mrs. Terrill and Personette, her son. And Terrill, while denying that he had knowledge of the execution of the deed to Lonabaugh by Personette, admits that he knew a trade was in progress. And on March 20, five days after the execution of the deed to Lonabaugh, he wrote to Metz: “ Of course, you are aware by the mes
It is also urged that Metz, as attorney for Terrill, is chargeable with notice of all Terrill’s equities in the premises. But it is to be observed that Metz was employed by Terrill, to defeat the claims of these very creditors, and to sustain the very conveyance which is now denounced as fraudulent. It is impossible to conceive how Metz, by reason of his relation to the case as attorney, can be presumed to have had notice of any equities of Terrill, when, as appears conclusively from the evidence, up to the time of, and long after, the purchase by Lonabaugh, Terrill was asserting that the conveyance was fair and valid, and the whole transaction entirely to his satisfaction. Absolute good faith is justly required of an attorney in all his dealings with his client, but it does not
Terrill also charges in his cross-petition, filed February 4, 1898, that Metz, while acting as his attorney, concealed from him that he claimed any interest in the land, and that he had no knowledge of that fact until he received the information from another source in December, 1897. But in a letter from Metz, dated October 23, 1897, and introduced in evidence by Terrill, Metz states that he had formerly written him that he had purchased an interest in the land.
We are forced to the conclusion that the evidence is clearly insufficient to impeach as fraudulent, either the cenveyance to Mrs. Personette, or that to Lonabaugh. And she having acquired a valid title, any evidence bearing upon the consideration for the conveyance to Wilson B. Personette, or the intent with which it was executed, becomes immaterial and irrelevant to any issue in the case.
The judgment will be reversed, and the cause remanded with directions to the district court to enter a decree setting aside the levy of the plaintiffs’ attachment upon the land in question, dismissing the cross-petition of the defendant, James Terrill, quieting the title of the defendants, W. S. Metz and E. E. Lonabaugh, to said lands; enjoining the plaintiffs and the said Terrill from in any way interfering with the title or possession of said defendants, Metz and Lonabaugh, and in favor of said defendants, Metz and Lonabaugh for cost.
Reversed.