*1
Garner,
appeal.
Riddle
tions to enter JOHNSON,
HALLEY, J., and C.V. BERRY, JJ., concur.
IRWIN
WELCH, J., result. concurs
BLACKBIRD, J., and DAVISON C. WILLIAMS, JJ., dissent. PAYNE, Error, Plaintiff
O'Dell GILMORE, dba OK Furniture Roofing Co., Defendant Error.
No. 39743.
Supreme Court of Oklahoma.
Feb.
Rehearing 4, 1963. Denied June *2 in er- Hugo, for A. Brewer
O. ror.
JACKSON, Justice. Payne, as appeal by
This is an O’Dell creditor, judgment judgment from a order in district court favor n Gilmore,as debtor, which was proceedings rendered after aid certain execution. question in the trial cоurt involved
was whether or not certain con- veyed by wife and son Gilmore subjected should be to execution satis- by Payne against faction aof held Gilmore. history
A litiga- statement of the tion, dates, particular with attention to necessary proper understanding May 28, 1958, Payne On issues. filed compensation against claim for workmen’s Gilmore, upon injuries basing oc- the same January April curring year. carry compen- did not workmen’s Gilmore 27, 1959, January sation insurance. On submitted the case was heard and the cause provision party with the either deposition testimony by submit medical days, thirty they within which did. On 9, 1959, March Gilmore recorded deeds conveyances by which divested himself of all he owned the state Oklahoma, in the placing title thereto names Gilmore, Leta and his of his Jack Gilmore, was at time a minor at- who tending college in Durant. On March Industrial Court made an the State case favor of award against Gilmore in thе amount approximately $3500.00. paid, The award proceedings in aid of began thereafter authorized, under He was execution. 42, to 85 O.S.1961 file provisions of in the office of award copy of the certified County, of Choctaw Clerk the Court 12, 1959. District November he did on begun and then proceedings were Court and returned issued execution writ of Payne then property found. Kile, Hugo, plaintiff endorsed Lon in error. proceedings, faith, began garnishment under 12 bad purpose or for the of hinder- seq., ing, Leta against delaying O.S.1961 et defrauding garnishees, alleging shall persons void as all Jack *3 possession propеrty that their whom had in the maker is the indebted time or belonging under any liability.” to Gilmore. legal Joe and the hearings At held in the trial court establish- ed family beyond monetary three the Gilmore tes- members of doubt that consid- tified as business transactions and eration was property conveyed to their to only the wifе other witness was the and The conveyances relations. The son. were County, admittedly County closely related; Choctaw Okla- Clerk of they homa, reception year that were a who testified his record made about after the in- jury conveyances and fil- which was basis Payne’s showed that the deeds work- 9, 1959, compensation men’s claim; they ed in his office March on were made to, after by, brought in returned Gilmore. claim filed and State In- Joe Court, documentary only dustrial evidence was introduc- and were Some filed two weeks before judgment ed. was entered. After transfers, debtor, judgment Gil- Adjudica- Payne thеn a “Motion for filed more, manager continued to work as of the asked tion” in which that the deeds and place involved, purport- business and the conveyances be set aside as a mentioned thereof, son, ed transferee his continued to upon fraud the creditors college, attend during least of the to be be owner of decreed given time. opportunity When direct to conveyed purportedly to his so, do deny son to refused that at the son, wife and sub- Payne time of the he knew of the jected in satisfaction of the to execution against claim his father. The judgment from State Industrial mother denied that she knew of the claim. Court. The son testified that making convey- the order the dis- From ances, “stripped the father himself of refusing grant trict court relief everything he owned”. appealed sought, has court. portion of the evidence above sum- sought Since the relief in the trial substantially marized uncontradicted. court consisted of cancellation of deeds In Ebey-McCauley Smith, Co. v. Okl., ground 23, 28, quoted 353 P.2d we from Leonardo purpose were made for the of defrauding Leonardo, U.S.App.D.C. 119, 251 F. equitable this case is one of cog 22, 26, 2d as follows: Whiteis, Inc., nizance. Bert v. Motor Mort 698; “In the law Co., convey- fraudulent gage Okl. P.2d 50 C.J. ances, ‘badge the term S. 32. This court will fraud’ means therefore Juries any fact tending suspicion weigh examine the throw evidence, record and upon questioned and if the transaction. It evidence, an conveyance it raises inference weight of the will be reversed. fraudulent, Richard, upon and throws Richard v. parties to the transaction the burden of. 101. satisfactory explanation making now ca3e, We review the evidence persuasive proof good more faith keeping in mind 24 O.S.1961 required.” ordinarily than is provides as follows: said: We then “Every conveyance of real estate or therein, indicia, any every “Among interest badges, or mort-' of- considera--, af-, gage any fraud, inadequacy way other instrument ar.e: fecting same, Leonardo, (Leonardo supra), made without a tion fair in- transferrer, consideration, solvency relationship or made in valuable clеarly mortgage does not liens. The record transferee, pendency the transferer in- mortgage show total amount of litigation, or threat of debtedness, no evidence there is estate. entire the debtor’s transferred, the total value section Conveyance’, ‘Fraudulent expert an admittеdly not witness, building was testified that hotel above hold that dollars. forty fifty worth from thousand substantially uncontra- summarized, being business, Concerning the the son tes- establish dicted, sufficient is more than him; tified that his gave father it “indicia, badges, five the existence father it testified that his son “accumulated *4 Ebey-McCauley in of listed fraud” by working”; “just thаt he worked himself Smith, supra. it”, presumably (from into the son’s testi- 289, Walker, P. 115 Okl. In Toone v. mony), during summer vacations and paragraph third 147, in the this court held week school, ends while he was in syllabus: of the ages the of 17 and 20. “ suspicious are ‘Badges fraud’ of There was also testimony that sometime overhang a trans that circumstаnces (Payne’s injury in first January, inwas the action, appear on face of the or 1958), a man named Ballard half bought a possible of fraud The indicia papers. in the Roofing interest OK Furniture and could court that no are so numerous Company from Gilmore. The record them. anticipate catalog or pretend to paid does not show what he for it or wheth- transaction may stamp one the single A he participated er thereafter manage- fraudulent, and, several when Although ment thereof. the son testified combination, strong clear in found the “barely that business was solvent” when upholder on the evidence of of March, got he it in he was able repel required to will be transaction buy October, out Mr. Ballard in 1959. Bal- (Emphasis conclusion fraud.'1 testify paid lard price did and the supplied.) time, him is not During shown. all of this examine the record now further payments the son able to make there see if in this case to approximately per month on a mort- $300 part of on the clear evidence “strong and property gage against the father had trans- n * * to transaction upholder of the payment ferred to the of which of fraud”. repel the conclusion son had mortgage pay- assumed. Thе ments, payments per and lease family tes- $100 members of All bad, month to wife were all made out Gilmore’s health was that tified Roofing Company the OK Furniture and Be- condition”. a “bad heart he had felt that business. condition, Gilmore cause business; he run the longer no he regard to the With rental or residential “impelling wаs the his health testified units, the son hearing the first testified the transfers. for reason” them; there were about 18 or 20 of hearing, second he said first general- involved consisted The testimony error, inwas and that there were known as the OK Furniture ly a business properties only rental “two half in- Company, a half in Roofing interest рiece property”. in a He terest said land and an acres of farm undetermined occasioned error was fact that since units (all of rental residential number transfer, units, ; had himself built Jack) he some hotel build- transferred bought appears some. It (transferred Gilmore home had and the ing carrying college full course at wife, Leta). mortgages son There College in Durant at State amounts some of the Southeastern substantial transfer at the part of it the time of the property, but at least was free of * * * May, At hearing time of first repel March, hearing in contrary, time of the last conclusion of frаud”. On the working had months whole been for several record in case shows the exist- Telephone Company, apparently Bell ence of the following “in- recognized well dicia, city. ill Although badges, another the father’s of fraud”: a transfer “impelling for the health was reason” support, considerаtion of future property, transfer of the he continued where rights existing creditors are prejudiced manage the business after (24 Fraudulent Con- veyances, 35; signed the son checks. ; Sec. 584) A.L.R. volun- paid salary tary conveyance services as father is for his from husband to while wife manager. he is in (Apple debt v. American Bank Nat. Ardmore, 82; 231 P. full value son testified Harrison, Okl., Hildebrand v. to him “because transferred ; 498) failure charged with He assumption gave also debts”. a fraudulent produce available testimony it could inferred from evidence, testify or to pre- with sufficient *5 support agreement that an future pertinent ciseness as to (37 details C.J.S. parents his constituted consideration of Conveyances ; Fraudulent buyer’s, 91) § part paid, or a of it. employment goods manage seller of to property regard to the transferred With (37 the business Convey- Fraudulent C.J.S. was she testified that when it to the 93); ances inadequacy § of cоnsideration bought, property, her first it was (Ebey-McCauley Smith, ; v. supra) title was not in her she later learned that property anticipation of, or pending, that at the time of name. She testified suit, especially where the transfer renders- willing to purchase, was for me have “Joe the debtor greatly insolvеnt or his reduces building. I home and the business Smith, estate (Ebey-McCauley supra;. v. it and that was it”. wanted Harrison, Hildebrand supra). v. examination, On cross gave testimony she regard testimony With to the of the wife- inferring that the consideration she gave inferring past that her services in her property for the transferred to her in 1959 рlace husband’s of business constituted the- consisted of work that she had done for moving husband, consideration to the place her husband in his of business “off 667, English, Andrews v. Okl. 200 199 P.2d years” and on for without being suit, 202, a creditor’s this court held: salary. She admitted that she learned “In agreement the absence a valid signed she the time a mortgage to the contrary, implied there no obli- to is Standard Life Insurance Com- Jefferson gation on the husband to. pany, prior some time transfer, the 1959 pay though his wife for services even title to the was not in her they are rendered outside the ordi- name; however, apparently she did not de- nary household duties.” transfer of the mand to her until case, any In there was no evidence of conveyances about time the 1959 by agreement pay husband to for his- executed recorded. This was of course services, wife’s and under rule- the above Payne months after the compensa- several implied pay law he had obligation no claim had tion been filed her hus- past her. The wife’s services therefore- band. not said to be a consideration for conveyed to her. After a careful examination case, question we have sum of whether at the On time above, marized detail any some we legal there existed forced “upholders the conclusion that liability relationship, or creditor-debtor produce the transaction” did not “strong between see the third syllabus .proposition in Andrews The third that there existed paragraph of garnishable no we held: debt as supra, wherein English, son, Jaсk, support and his and in thereof employer to liability of an legal “The Paramore, Ray case of Okl. Workmen’s employee under his is cited. In that case Compensation included Law is requiring pay plaintiff garnishee contemplated in 24 O.S. liability legal defendant, money garnishee owed the 1941 10.” was was reversed the reason that there In that case we held effect competent gar- that the debt employer carry an who does not workmen’s nishee owed was then due. legal liabil insurance is under In us, the case now before the judgment ity employee the date injured from creditor was trying to reаch a debt us, injury. In the case now before owed father, Gilmore to his but Jack employee, Payne, the injury the first trying to reach property in hands Jack’s prior to date year occurred about belonging to his Ray v. Paramore father. concerned, execution of point. therefore not in thеy were re months before about 14 We are aware the holding of this Gilmóre, Therefore, at the time corded. court in State ex rel. Mothershead v. Mob lia conveyances, legal under ley, P. and similar meaning of 24 bility within cases, general to the effect that the burden O.S.1961 *6 of proving upon fraud is alleging one it, and that fraud must clearly proven holdWe weight clear implied. will not be These this case is to the effect that accordance with general rule broad the 1959 transfers pur were made for the proof However, burden of never shifts. pose “hindering, delaying defrauding” equally it is well settled that the burden judgment crеditor, Payne, O’Dell going with the evidence can forward were made without a fair and does proper shift under See circumstances. time, valuable consideration. Since Conveyance, Fraudulent Sec. legal liability Gilmore was under page following to the effect: statute, within the meaning of the facts, commonly “Where denomi- are void as to him. fraud’, ‘badges supra nated see sec- brief, In the answer error 39-97, appear tions which are sufficient argues propositions. three The presumption raise a that the con- first one is general to the effect that veyance grantor’s is in fraud of the supported by evidence. showing the burden of good previously have determined this issue to the faith is shifted to the to such ” * * contrary. * conveyance. relationship one is that the Walker, supra. second See also Toone v. of husband and and father and judgment is reversed and the cause existing сase, in this alone is not sufficient remanded to the trial court with directions to shift of going the burden forward with Payne’s Adjudica- sustain “Motion may may evidence. While this tion”, proceed- such other and to undertake (we be true have held that the existence of may ings as be authorized law. a single badge may of fraud stamp trans- fraudulent, Walker, action as Toone v. BLACKBIRD, J., WILLIAMS, C. argument supra) the is immaterial here for JJ., BERRY concur. IRWIN the reason that the shows the exist- record one, HALLEY, several, J.,C. badges ence of not but V. DAVIDSON JJ., JOHNSON, fraud. dissent.
DAVIDSON, (dissenting). Justice opinion that
I am of the is not
of the trial court af- should be
weight of the evidence therefore, respectfully dissent. I,
firmed and INSURANCE
UNITED BONDING Error, COMPANY, Plaintiff PATRICK, Clyde ex rel.
STATE of Oklahoma County, County Attorney, Okla Creek homa, in Error. Defendant
No. 40079.
Supreme of Oklahoma. Court
May