164 N.W. 975 | S.D. | 1917
Lead Opinion
This action was brought to determine the ownership of a half section of land' in Spink county. Prior to the transactions involved in this case the land was owned by one G. H. Brown. He executed a deed conveying the land to' his brother, W. H. Brown, who in turn sold it to -the plaintiff. The deed in question was executed' on the 27th day of September,
At the close of the trial, the trial court found, among other facts, that the conveyances of the land by G. H. Brown to W. H. Brown were made—
“without any agreement as to a definite price or consideration and were made for the fraudulent purpose and with the fraudulent intent to thereby defeat the collection of claims of the creditors of Giles H. Brown, including the claim of Edwin McComb, and that said deeds were accepted by the said Walter H. Brown with knowledge on his part of the said fraudulent intent, and with the intention on his part to - assist the said Giles H. Brown in the effort to defraud the creditors of the said Giles H. Brown, including the defendant McComb.”
Pursuant to such findings of fact and conclusions of law based thereon, judgment was entered declaring said deed to- be null and void, and directing the ■defendant Hanson to- proceed with his levy and sale of the land. From this judgment, and an order denying a new trial, plaintiff appeals.
The -circumstances relied upon by defendant to show that the conveyance .was fraudulent are: That the grantor and the grantee are brothers and -business associates; that the conveyance was of all the grantor’s property; that the conveyance was made pending a suit -against the grantor; that the consideration expressed in the deed was fictitious; that the grantee took a sheriff’s
“Relationship is not a badge of fraud. Fraud, however, is generally accompanied with a secret trust; and hence the debtor must usually select a person in whom he can repose a secret-confidence. The sentiments of affection commonly generate this confidence, and often prompt relatives to .provide for each other at the expense of just creditors. 'Consequently relatives are the persons with whom a secret trust is likely to exist. The ' same principle applies to all persons with whom the debtor has confidential relations.' Any relation which gives rise to confidence, though not a 'badge of fraud, strengthens the presumption that may arise from other circumstances, and! serves to elucidate, explain, or give color to the transaction. * * *”
But a sale to a relative is not fraudulent, unless it would have been fraudulent for other reasons, and in the absence of such relationship.
Respondent cites Walklin v. Horswill, 24 S. D. 191, 123 N. W. 668, and relies upon what is said by this court in that case in support o-f the determination of the trial court in this case; but the facts in the two cases are not analogous. In that case the grantor executed a bill o-f sale purporting to convey the absolute title to the property involved to a creditor. The value
There being no evidence in the record ho support the findings of 'the trial court that the conveyance was fraudulent or made for the purpose of hindering, delaying, or defrauding the creditors of G. H. Brown, the judgment and order appealed from are reversed.
Dissenting Opinion
(dissenting). In view of the inability of W. H. Brown to make a satisfactory accounting of the paper taken over by him, I am not convinced that the claimed indebtedness of G. H. Brown to him was proven. I therefore think the majority opinion is wrong, -because it is has'ed on the assertion that there was bona fide debt to W. H. Brown in excess of the value of G. H. Brown’s equity in the land.