5 Ohio App. 416 | Ohio Ct. App. | 1916
This case comes here by way of appeal from the common pleas court of Licking county, Ohio, and the relief sought by plaintiff, Dessa P. Penick, is the setting aside of a certain deed executed and delivered by the defendant Eva L. Penick, to her husband, Emless L. Penick, the petition alleging the same to have been made in fraud of the rights of plaintiff and other creditors of the said Eva L. Penick.
The petition in substance avers that at the April term of the common pleas court, in the year 1912, plaintiff recovered a judgment against the defendant Eva L. Penick in the sum of $1,200, with interest from the first day of said term, to-wit, April 1, 1912, at the rate of six per cent, per annum, and for costs; that on the 28th day of August, 1908,
The answer is a general denial of each and all the material allegations set forth in the petition.
The essential facts in this controversy and the ones necessary for the proper determination of the issues in the case are as follows:
The defendant Eva L. Penick, for the consideration of $1, executed and delivered to Emless L. Penick, her husband, a quitclaim deed for the real estate in question, the deed bearing date of August 29, 1908, and being delivered to the grantee by the
We are of the opinion that there are but two questions necessary to be considered in the present case, and upon these the rights of the parties hereto must be determined. First: Was the plaintiff, under the facts in this case, a creditor of the defendant Eva L. Penick, at the time her suit for damages was filed? Second: Was the deed in question from Eva L. Penick to her husband, Emless L. Penick, voluntarily made, was it executed without consideration, and was it done for the purpose of defrauding Dessa P. Penick, a creditor?
Addressing ourselves to the first question it will be necessary to determine whether Dessa P. Penick was a creditor of Eva L. Penick, as contemplated in law, at the time of the execution and delivery of the deed in question, or was, under the facts as shown by the evidence, a subsequent creditor. If
The evidence in this case shows that the deed was executed on the 28th day of August, 1908, and the suit for damages was filed May 18, 1909. A mere claim for damages for the alienation of affections certainly is not a credit until it is reduced to judgment, and Dessa P. Penick in her suit for damages against Eva L. Penick is not a creditor, within the meaning of the law upon the subject of conveyances in fraud of creditors, until her reputed claim has been reduced to judgment. The mere fact that Dessa P. Penick threatened to bring suit for damages against her mother-in-law, Eva L. Penick, in no wise makes her a creditor, because the suit might never have been brought and judgment might never have been obtained. Therefore, in the instant case, a court of equity would not be justified in setting aside the deed in question, even though the deed was without consideration, in the face of the fact that the plaintiff was a subsequent creditor. The burden in this case was upon the plaintiff to show that she was a creditor of Eva L. Penick at the time of the execution and delivery of the deed in question, and that the real estate described in the deed was transferred by the defendant Eva L. Penick with intent on her part to defraud the plaintiff. We feel that our theory of the law in this regard is well established by the principles laid down in the cases of Evans et al. v. Lewis, 30 Ohio St., 11, and White v. Gates, 42 Ohio St., 109, 112.
We feel it is the settled policy of not only this but other states, as indicated by repeated decisions of our courts of last resort, that deeds executed in conformity to law shall not be set aside except upon such evidence as will clearly satisfy the court that the claim of fraud has been fully and completely established, the mere preponderance of the evidence not being sufficient.
Upon the whole case we are satisfied that the plaintiff has not made out her claim by such clear and convincing evidence as will entitle her to the relief prayed for in her petition. Therefore the petition of plaintiff is dismissed at her costs.
Petition dismissed and judgment for defendants.