103 Minn. 5 | Minn. | 1907
Action for divorce and alimony and to have the amount of recovery declared a specific lien upon certain real property standing of record
The only question presented by the assignments of error which are discussed in the briefs is whether the findings of the trial court are sustained by the evidence. Assignment 23, challenging the right of the court to award costs against appellant, is not covered by the brief -of appellant, and will not be considered. Johnson v. Johnson, 57 Minn. 100, 58 N. W. 824; Dodge v. McMahan, 61 Minn. 175, 63 N. W. 487.
The record discloses substantially the following facts, which are in the main embodied in the findings: Plaintiff and defendant H. C. 'Rand were duly married in January, 1866, and have continuously •since, up to the time of the judgment herein, been husband and wife. In September, 1903, defendant wilfully deserted and abandoned plaintiff, and after the first year of such desertion contributed nothing to her support or the support of their minor children, but, on the contrary, left them in a state of destitution. Defendant William H. Rand was born of that marriage, and defendant Anna Rand is his wife, or was until recently divorced. H. C. Rand is, and always has been, engaged in active business and capable of supporting comfortably his family. He met with reverses and became involved in various debts, some of which he firmly made up his mind never to pay, and to that end adopted some of the usual methods to carry his determination into effect. After the desertion of his wife, he carried on and conducted all his business transactions in the names of other persons, principally in that of his daughter-in-law, defendant Anna. The trial court found that he placed the title to the land involved in this action in her name for the express purpose of hindering, delaying, and preventing plaintiff from obtaining any claim thereto, or enforcing any judgment for ;alimony against the same, and to defraud plaintiff of her marital •tights. The court also found that, at the time the title to the lands
Our conclusion is, without entering into an extended discussion of the evidence, that the findings are amply sustained, and that, too, within the rule that fraud is never presumed, but must be shown by the person alleging it by clear and convincing proof. It is often difficult to prove the existence of fraud in cases of this kind by direct and positive evidence, and the courts are driven to a closer consideration of the badges of fraud, facts and circumstances, and those incidental items of evidence tending in the direction of good or bad faith. ' The close relations maintained between defendant and Anna, after the. desertion complained of as the basis for a divorce between plaintiff and defendant, and the fact, which cannot well be disputed, that Anna was possessed of very limited means, to say the least, while defendant was actively engaged in business, transactions, operating either in the name of his son, William H., or defendant Anna, and in reference to the purchase of the real estate here in question wielded the guiding hand, claiming to act for Anna, show with reasonable certainty that defendant was the real party in interest, and that the name of his relative was used as a cover to conceal the true ownership of the property. At any rate, these items of evidence in connection with other circumstances disclosed by the record, reasonably tend to support the charge of fraud, and are sufficient to preclude the reversal of the trial court in so finding.
Judgment affirmed.
