123 P. 397 | Mont. | 1912
delivered the opinion of the court.
This action was brought to quiet the title to a certain piece of real estate in Butte. On September 2, 1908, Patrick Reid conveyed the property to his wife, Winifred, and on June 22, 1909, Winifred Reid conveyed it to the plaintiff, James Reid, who is her son. On the latter date Winifred Reid was indebted to the defendant in the sum of $1,021.90. On July 22, 1909, an action was commenced on this account and a writ of attachment issued. On August 24, 1909, judgment was entered, and the real estate in controversy was sold to the defendant in partial satisfaction thereof, by the sheriff, upon execution. As a defense to the action, the defendant alleged that the transfer from Winifred Reid to the plaintiff was made “with intent to hinder, delay, and defraud her creditors, including defendant; that said grantee had knowledge of the grantor’s circumstances and knew of her indebtedness to the defendant and of her fraudulent intent and participated in the scheme to hinder, delay, and defraud her creditors; that said transfer was made without consideration, was fraudulent and void, and was made for the purpose of preventing the defendant from collecting its indebtedness against Winifred Reid.” This allegation was put in issue by a reply. Said reply also set forth affirmatively that for many years prior to September 2, 1908, plaintiff earned considerable sums of money, which he gave to his parents, Patrick Reid and Winifred Reid, ‘ ‘ and during all of said times they promised and told this plaintiff that the property described in the complaint belonged to and should become the property of this plaintiff; that during the year 1908 Patrick Reid, father of this plaintiff, died; that prior to the death of said Patrick Reid, to-wit, ’on the second day of September, 1908, the said Patrick Reid, for the purpose of fulfilling the said promise and agreement to this plaintiff, executed and delivered a deed to the said property to Winifred Reid, with the understanding and agreement that the said Winifred Reid was to hold the said property in trust, and to hold the same as trustee of and for this plaintiff; and that Winifred Reid, in pursuance of said agreement and in ful
C. J. Kelly, manager of the Hennessy Mercantile Company, called as a witness by the defendant, which assumed the burden of proof, testified in part as follows: “Along in May, 1909, we called Mrs. Reid to the office and told her that the account was entirely too large; that she would have to either secure the account or pay it; her failure to do either would mean that we would bring suit. She said it would be paid; that she had lots of money; that she owned the property and we were not taking any chances. My knowledge then was that she owned this property. She said she would make a large payment on account immediately after the June pay days. That, of course, she failed to do, and later in the month we had to close the account entirely. The June pay days came, about the 15th. For many years prior to that time she also, as payment on the account, turned in the checks of her son, James Reid, and they were always applied on the account.”
Mrs. Reid testified: “I got the title to this property, No. 833 North Montana street, a couple of days before Mr. Reid died. Him and I was talking to each other. Of course, we knew he was going to die, and he didn’t want to let it go through the court. He said, ‘You can fix that with the boy,’ because if it went through the court it would cost more money. He just told me to deed that over to Jimmie when he would demand it. He said he would give it to me and I could do as I liked with it. He says when the boy would demand the house, to give it to him, because he promised him the house since he was twelve years old if he would be a good boy, and he was a good boy; every
James Reid, sworn for the defendant: “I was between fifteen and sixteen when this agreement with my father was made, in January, 1903. He simply said that if I would turn over my
It appears from the foregoing and other testimony in the record — construing the same as favorably as possible for the appellant — that on a day in January, 1903, a little after 6 o’clock in the evening, when it was broad daylight, Patrick Reid informed his son James, in the hearing of Winifred Reid, his wife, that if the son would turn over his pay checks and thus assist in raising the other children, the house and lot would be his when he arrived at the age of twenty-one years. No one else was present. James fully performed his part of the agreement and paid in about $4,900 for property of the value of from $1,500 to $1,800. Although James became of age in April, 1908, he did not demand title to the property' at that time or at any time prior to the death of his father,- on the contrary, he paid into the family exchequer the sum of $710 in the year 1908 after he became twenty-one years old, and between $400 and $500 in the year 1909, prior to June 22. He attempted to explain the payment of $710 by saying that he agreed with his father to make certain repairs on the house. These repairs cost about $450. He also declared that he voluntarily made payments to his mother after the death of his father for the purpose of assisting her and sending his sister to school. On or about September 2, 1908, Patrick Reid, who was about to die, transferred the property and one other house and lot to his wife. Immediately prior to the transfer he had told her to “fix it up with the boy,” to deed the house over to Jimmie “when he would demand it.” He said he would give it to her, and she could do what she liked with it; that he had promised Jimmie the house “since he was twelve years old.” It appears from the testimony of the appellant, however, that he was almost sixteen years old when the alleged agreement was made.
Bearing in mind that this is an equity case and the burden of proving fraud in the transfer from Winifred Reid to James Reid was assumed by the respondent, the only question for de-
In Merchants’ Nat. Bank v. Greenhood, 16 Mont. 395, 41 Pac. 250, Mr. Justice De Witt, speaking for the court, said: “Fraud cannot often be proven by direct evidence. Fraud con
Mr. Moore, in his treatise on Fraudulent Conveyances and Creditors’ Remedies (volume 2, page 964), says: “The mere fact of relationship between the parties to a transaction which is prejudicial to the interests of creditors does not establish fraud. * * * It is held by the weight of authority, however, that the fact of relationship may cast suspicion on the transaction and lend credence to the claim that it was the result of a conspiracy by or collusion between the parties thereto to defraud creditors, since relations may be presumed to be on terms of intimacy, and to have a natural and strong motive to protect each other at the expense of creditors, and more likely than other persons to lend aid to each other in case of pecuniary difficulty.”
A trial court is not bound to believe all the testimony that it hears. The appearance and demeanor of the witnesses, their manner of testifying, and the probability or improbability of the
Judge McClernan was evidently of opinion that no such agreement with Patrick Reid as that narrated by his wife and son
Affirmed.