22 Wash. 433 | Wash. | 1900
The opinion of the court was delivered by
Action by John E. Reed against Charles Loney, Charlotte Loney, his wife, C. C. Loney and W. D. Loney, to set aside conveyances of certain described lands in Walla Walla county, made by Charles Loney and wife to the other defendants, who are their sons, for the purpose, as alleged, of hindering, delaying and defrauding the creditors of the community composed of Charles and Charlotte Loney, and to subject said lands to the lien of a judgment obtained by said plaintiff against said Charles Loney. The facts in the case are as follows:' On the 5th day of Hay, 1897, the plaintiff obtained a judgment against John T. Loney and Charles Loney for the sum of $4,055, together with interest, attorney’s fees, and costs, aggregating in all a sum in excess of $5,000. The judgment was recovered upon joint and several notes executed by John T. and Charles Loney for the purchase price of a tract of land conveyed by plaintiff to said John T. Loney, and in the action in which judgment was rendered it was expressly determined that the said Charles Loney joined in the execution of said notes as principal. John T. Loney was a son of Charles and Charlotte Loney, and had worked' on his father’s farm for about five years after becoming of age, without receiving compensation therefor. His father, however, had, according to his son’s testimony, promised to help him get a start in life, and, with that object in view, had joined in the execution of the notes given for the land conveyed to him. On the 16th day of
The appellants attack the complaint in this cause on the ground that it does not allege with particularity the fact that appellants, Charles and Charlotte Loney, had no other property sufficient to satisfy respondent’s judgment at the time of making the conveyances and transfers complained of, or at the time of the commencement of this action. While such allegation is not made in the complaint hy particular averment, yet sufficient facts are set forth to show the utter insolvency of the judgment debtors both at the time of the transfers and at the date of the commencement of this action. It is shown by the complaint that execution was issued on the judgment within two months after its rendition, and that it was returned wholly unsatisfied; and the complaint further alleges “that the above described property so pretended to be sold, conveyed, and transferred to the defendants W. D. Loney and C. C. Loney, as aforesaid, constitutes all and singular the property belonging to the said community of the defendants Charles Loney and Charlotte Loney, or either of them, out of which the said judgment could be satisfied, in whole or in part, and unless this said property can be reached and applied to the payment of said judgment the same must remain wholly unpaid.” Under the prior decisions of this court the complaint is good as against a demurrer based on the ground that it fails to state facts sufficient to constitute a cause of action.
“ If the property conveyed was all the property owned, it necessarily follows that there was no other property out of which the execution could be satisfied.” O'Leary v. Duvall, 10 Wash. 666 (39 Pac. 163).
See, also, Cook v. Tibbals, 12 Wash. 207 (40 Pac. 935).
Upon the trial the respondent, for the purpose of impeaching and rebutting the allegations of appellants’
But, even if it were conceded that the testimony so introduced was binding on the respondent in every respect, still, in our judgment, it does not, taken as a whole, prove the trust agreement set forth in the defendants’ answer. The appellants, therefore, must be held to have failed in establishing their affirmative defense.
We think that the community character of the debt upon which the judgment against Charles and John T. Loney was founded was satisfactorily established. It had already been determined that Charles Loney was a principal, and not a surety, on the notes sued on. The presumption, where a promissory note is executed by the husband, is that
In answer to the appellants’ contention'that the respondent could not have been injured by the conveyances, for the reason that the lands were incumbered to such an extent that, with a homestead exemption of $1,000, to which the grantors were entitled, there would be nothing left for creditors, it is sufficient to say that there is no issue in this case as to whether the grantors are entitled to a homestead in the premises. However, whatever rights the grantors may have by way of exemption in the premises are amply protected by the decree, which provides that said judgment constitutes a lien upon all of said real and personal property, and that the same, or so much thereof as may be necessary, be sold as upon execution against said defendants Charles Loney and Charlotte Loney, saving to said defendants Charles and Charlotte Loney any right of exemption that they may have, etc.
As to the participation of the grantees in the alleged fraud, although there is no direct proof of knowledge and intent on their part, sufficient appears to render them chargeable with such notice as to put them on inquiry, and
It is conceded that they are the children of the grantors, and lived with them and worked with them on the lands in controversy for some years, endeavoring to pay off a heavy mortgage indebtedness thereon; and they must, from their family and business associations, have been fully acquainted with the financial condition of their parents. It is hardly possible to believe that they were ignorant of the fact that the father was being sued for a claim amounting to some $5,000 on account of a farm previously purchased for a brother of the grantees; and, besides, they took these conveyances without parting with anything of value at the time, knowing that their father was divesting himself of all of his property, real and personal, in the face of an impending judgment.
It appears from all of the evidence in the record that the judgment of the superior court is right, and it is therefore affirmed.
Gobdon, C. J., and Dunbab, Reavis and Rullekton, JIT., concur.