*1 393 Mont.] Albert et Roman al. Respondents. ROMAN, ALBERT al., et Appellant, (No. 6,232.) (Submitted January 1928.) January 1928. Decided
[264 115.] Conveyances Fraudulent Con- —Husband Wife—Loch of Purpose Delivery sideration —Failure Deed Pass- of ing Badges Proving Fraud— Fraud —Manner Title— Presumptions—Appeal. Gifts —
Appeal Trial—Propriety Interrogating of Court’s Witness not Review- — Exception Objection, able in Absence of of Error Specification or in Brief. objection 1. interrogations by judge the absence of *to the trial put appellant on the witness-stand relative an alleged conveyance fraudulent by husband, made to her or exception thereto, specification taken of error based thereon in brief, supreme may propriety court not review the judge’s conduct. May Circumstantially Appeal-—Finding be Proved of Presence Fraud — — Supreme may Uphold Court in Face of Testi- Positive Fraud — mony Contrary. of Defendant to the proof by 2. Because fraud difficult, direct evidence is is provable circumstantially and a wide latitude is allowed in assem- bling trivial, remote facts disconnected and circumstances tending it, to show weighed against viewed as a whole and charged the direct evidence of those perpetrating it, swearing transaction, to the bona fides of supreme and the court re- viewing testimony precluded is not from upholding finding a trial present, merely fraud was because positive record contains testimony and uneontradicted to the con- trary. Evidence —Courts not Bound Positive Uneontradicted Testi- mony Unworthy if of Belief. positive 3. Trial courts are not bound and uneontradicted of witnesses statements their appearance consider witness-stand, demeanor their manner of testifying pecuniary interest proceeding, disregard their testi- mony unworthy if deemed of belief. Relationship Badge not Fraud- —-Near of Fraud —Courts to Scrutinize Closely Transaction Between Husband and Wife. Though relationship badge 4. may near not is of fraud and husband transfer to wife while solvent, he is where the result of such a transaction is to person foreclose a third from just satisfying against claim grantor, subjected it must be -sufficiency Weight 2. of circumstantial fraud, evidence of see Ann. Cas. 1912A, See, also, note in 711. 12 R. C. L. 440. What proof fraud, see note in 65 sufficient Am. Dee. 157. Jur. 3. See Cal. R. C. L. 1006. 4. Transactions between husband and wife as fraudulent, see notes Rep. Rep. 657; in 19 St. 715; Rep. Am. Am. St. 90 Am. St. 497; 32 L. A. See, also, R. 67. 972; Cal. Jur. 12 R. C. L. 513. 39á [Dee. examination, searching where the circumstances to the most concerning transaction suspicion upon cast disregard equity may court of it. Con- Conveyances Without Fraudulent and Wife—Transfer —Husband Gifts—Presumptions. sideration — Held, conveyance of real an action to have a *2 trial fraudulent, finding of the wife the husband to declared conveyance was made without consideration was advancements supported by evidence, the rules that under gifts, presumed been to have made the wife to husband are money purchased of husband and that where wife and title other, presumption is placed in the name of the gift. conveyance made a that the Purpose Delivery to Same-—Deed from Husband Wife—Failure Passing may Transaction. Title —Who Attack wife was never delivered for Where deed from husband to 6. a only pur- purpose passing title and was recorded for the defrauding party sought conveyance to have pose of who fraudulent, the rule that a creditor whose claim aside as set conveyance may the time of the assert existence at apply. was fraudulent does not the transfer Delivery of Deed-—-Essentials. Same— determining delivery there a whether of a deed to the 7. parties controlling grantee, intention of the at the time is the unequivocally grantor must indicate it his in- factor; tention that conveyance effect the instrument shall take as a yalid delivery; delivery a thus there be a to constitute order turning delivery although or no deed, without is deed grantee. handed to Badges at Bar. of Fraud —Case Same— badges following present of fraud held to have been 8. an conveyance realty action to set aside husband and consideration, insolvency Inadequacy grantor, of the re- wife: possession grantor, of the tention and assess- conveyance, grantor property, after to the ment of the and not grantee. Trial, p. 900, band and p. n. p. ances, Conveyances, 27 C. 142, [4] [5] [2] [1] [3] [7] [6] [8] 22, 202, n. p. 491, 38 p. 27 C. Fraudulent Appeal Evidence, Evidence, Fraudulent Deeds, Fraudulent Appeal n. n. Cyc., 138, Wife, 67; 55; 96. n. J., n. 7; p. see. 18 C. see. 30 C. see. 30. see. 1945, 23 23 C. Conveyances, Conveyances, Conveyances, 775, p. 828, Error, 548, Error, J., C. 775, p. 828, J., 145, p. 492, J., n. 37. see. J., J., p. see. see. 4 C. 4 C. see. 441, sec. 771, 305, p. 708, 95, p. 197, J., 1791, p. n. 12. 1791, p. n. 89. J., p. 27 C. 27 C. n. 9. n. sec. see. 822, C. 24; J., J., 2869, p. J., 48, sec. 2647, p. 726, n. 57. 47, n. 34. n. see. see. sec. n. 39. 21, p. n. 149, 777, 198, p. 35, p. 135, p. 899, Trusts, p. 494, 198, p. Fraudulent n. 95. Fraudulent 48, 830, n. 521, 484, n. n. 17; n. n. 17. Hus Cyc., 25; 41; n. n. 38, sec. 7. 40; see. Convey sec. p. 40, 2869, 136, sec. 98, 41. 978; 12 Cal. Jur. 12 R. C. L. 6. See 7. What constitutes 493. delivery Rep. deed, see note in 53 Am. St. See, also, 8 R. L. C. 81 Mont.] Albert et al. Roman Thir- County, Court, Carbon District Appeal from Judge George Bourgmn, a District; Judicial teenth for- presiding. District, Second others, against John by Liberty Roman
Action cross-complaint. Puutio filed Sadie Mae defendant in which Af- appeals. plaintiff Judgment defendant Puutio and firmed. Spokane, "Wash- McKevitt, Bar of & Cannon
Messrs. Appel- Johnston, & Johnston, ington, and Coleman Messrs. argued cause Cannon brief; Mr. E. J. lant, submitted orally. fail- plaintiff’s that the tending contention support
Cases case, appearing in this facts deeds, ure to under the record parties part of intent on the does not establish fraudulent deed, Trust as follows: Citizens’ Co. to the are Buffalo 592; Easton, Fed. Crow- Eaves, (2d) 921; Fed. Brown *3 Sprague, Iowa, 230; 201 207 Otis ley Brower, 257, N. v. v. W. 515, 151 Brown, 184 Mich. 61, 154; 76 W. Reed v. 118 Mich. N. Gottlieb, 310; 592; Litschgi 53, 247 152 W. W. v. Mo. S. N. Shoemaker, 72, 95 31 & Marine v. Tenn. Phoenix Fire Ins. Co. al., 504, 94 270; "W. v. 208 Ala. South. Allen Overton et S. Rep. also, Flaharty, 40 477; see, 96, Martin 13 Mont. Am. St. v. Vaughn 242, Schmalsle, 10 415, 287; 19 R. A. 32 v. L. Pac. 25 186, 411, 10 L. R. A. Pae. 102. appears have been made in the lower court Much of the husband, many particulars, after execution fact that deeds, acted, agent children, his wife’s of the management great encourage- property. of her "Wefind following question Aldridge in the cases: ment v. Muirhead, 397, [see, also, 101 25 1013 L. Ed. Rose’s U. S. U. S. Raben, 221, App. 636; v. 45 Ind. 90 ; Wasam N. E’. Notes] (Iowa), & Burke Co. Cook & Son 15 Adams v. James Geo. 478; Casebeer, Iowa, 618, 122 98 v. N. "W.486. "W. N. Shircliffe Upon question giving consideration for deeds, equitable consideration, meritorious even and that a 396 v.
though inadequate, justify will reformation deed at following grantee, Hill, instance of the see cases: Stover v. 575, Melville, App. 208 94 827; Ala. Robertson 60 South. v. Cal. 723; Barksdale, 278, 212 Pac. E. 354, Smith 110 Ga. 34 S. v. 1009; 582; Talley, 74, 362, Wilson 144 42 Bron- v. Ind. N. E. Heirs, Ky. 639, 584; ston v. 141 133 Bronston S. W. Bartlett (Mo.), 944; Partridge Partridge, v. 272 220 White W. v. S. 321, 415; Cyc. 929; Mo. 132 Am. 119 34 Rep. 584, St. S. W. 23 344, pars. R. L.C. 38-40. point prevail right to reform will over the
rights husband, general judgment, creditors of the both 36, 23 R. 343, page sustained C. L. and the cases cited and following Hahn, 371, also the 114 44 cases: Beckius v. Neb. 73, R. 515; Judy, A. L. 207 N. W. Citizens’ National Bank v. 322, Coon, 640, 146 Ind. 259; 43 N. 135 Ind. E. Comstock v. 35 909; Milby E. Regan, 352, 16 Tex. S. App. N. v. 41 W. Civ. 372; Smith, 556, 517; Coates v. 81 Or. 160 Sicker v. Ram- bousek, 113, 193 Mo. 91 68. S. W.
Next will question be considered cases those wherein particular reformation of deeds arose with reference through parties failure mistake all of the to include conveyed. intended to be under head- We cite this ing following: Perry Sadler, 43, 832; 76 88 S. Ark. W. BaA-nes, 273, Butler v. 170, 419; 12 R. 21 Atl. Conn. L. A. Kline, 898; 39 Kan. 18' Pae. Trunnell v. Critchfield Tonole, 104 583; Or. 208 Pac. Moppins, Tex'. Laufer App. Civ. Cyc. 109; 936; S. L. W. R. C. John George Smith, Mr. G. Skinner and Mr. Re- S. spondents, argued brief; submitted Skinner cause Mr. orally.
MR. JUSTICE MATTHEWS opinion delivered the of court. July 31,
On plaintiff, Liberty Roman, commenced in action the district court of Carbon county the reforma- Mont.] Roman et al. a quiet tion of certain deed and to title to the real de- estate deeds; in scribed it and two other she as named defendants Roman, husband, Albert, Steve John sheriff county, of the ap- Mae and Sadie Puutio. defaulted and thereafter peared plaintiff. in as a the case witness for the joined Puutio alleged Albert and issue as in to the facts complaint, cross-complaint and the latter filed a in which she deeds as attacked the fraudulent and set on the up a lien t by judgment against described in deeds Steve Plaintiff, by allegations reply, Roman. denied cross-complaint.
Being equity ease, an the cause was tried to the court with- jury, findings in out due made a time the court elaborate facts, general findings on of the effect that all to the all, allegations complaint of the of the were untrue and all allegations cross-complaint findings On were true. appropriate entered the court conclusions of law and entered n judgment dismissing complaint awarding Puutio which prayed cross-complaint. she in her relief appealed Plaintiff assigned has from the and has findings error on each of the and on made action refusing findings adopt proposed tendered her, assignments, however, whole, taken a raise but sufficiency question of the support the evidence to findings judgment of the court. facts, record, as disclosed substantially are Liberty
follows: Steve Roman were married in New York immediately joint in 1895 after their arrival from the Swiss years Tyrol. couple For two brewery; Steve worked Veronica, then, child, first Utah, with their moved to where year, they worked a coal mine for one then Lodge, they Red resided; came have since where here Steve years coal mines worked the- for a number of and then ran changed saloon some time then wholesale business, liquor outlawry business. On of his the saloon building moving converted into picture theater and con- *5 Albert
398 Roman al. Moat. 393.] [81 Up money expended improvements was siderable boarding rooming Liberty Roman a conducted to years family During latter theater. these house daughters. parents, sons or more consisted two three a fair family thrifty was and the children all received lawyer and went education; graduated older as son was Roman, son, John, to a sister Steve second state. Theater”; picture show, girls ran known the “Roman wage services, but family none of the received a name receipts deposited in bank in the from all sources were but “one Roman; Veronica, there was aptly put of Steve family.” and, pocket Property accumulated, the whole county, 5, 1926, Carbon up April to there stood of record in family Roman, a lot which stood in the name of Steve on residence, building, and two lot a restaurant on which stood and a lots on which stood the Roman Theater. fraction had family bitterly intimacy an resented twenty old, John, years grown-up son, then between Puutio, which culminated in Sadie Mae the defendant Puutio of Steve Roman of Miss instance arrest complaint charges. against highly libelous On dismissal against her, Puutio instituted an action Steve Roman for Miss had, resulting A in an in- prosecution. malicious trial judgment defendant, favor of structed verdict reversed and the remanded appeal cause this on (Puutio Roman, new for a trial.
523.)
Knowledge family the Roman on the reversal came to later, and, days they placed of 3, 1926, two record three April 26, 1920, deeds, April two of which bore the acknowl- dated Roman as of that date the third as edgment Steve conveyed Liberty 29, 1926. The first and second April property, restaurant the residence Roman two and a one lot of the fraction the third described but building. April 5, On Steve stood the theater on which sale his and had gave Roman Veronica bill of automobile et Roman 81 Mont.] name that of the from transferred bank account “Roman Theater.” April received on this court was
The remittitur Mae in favor of Sadie was entered thereupon judgment amounting to costs against Puutio and upon that and was levied thereon and execution issued $495.50 *6 in the deeds described property not portion the theater of a correc- Roman executed May Steve above. On mentioned wife, property his conveying all theater tion deed was Roman placed record, and thus was which deed insol- rendered vestige property and last divested of the vent. had case was prosecution malicious
A trial of the second final resulted in a this trial on June and An $6,000 costs. sum of and in favor of Miss Puutio in the effected, was taken, stay and execution appeal but no was was described and all thereupon issued levied plaintiff. There- Roman to from Steve in the several deeds this action. upon plaintiff commenced sought to establish the plaintiff which complaint the claim of defend- allegations of her and to defeat substantially plaintiff testified as follows: The ant Puutio is age at country and was married that she came to this prior thereto, eighteen that, eight years years, she and telescopes Basel, peddled clothing, glassware and had paying living away Switzerland, her own ex- from home $8,000, part approximately she made that penses; that, on kept, she so em- part of which sent home she $3,400, York, equivalent of barking for New she had This arriving in York. $3,000 had left New which she on family Utah, spending kept about $3,000 until went to she purchasing trip in Utah. thereafter house on the $500 it we not in- was are cost or what done What house $3,000 left -when testified she had She then formed. stating: kept “I Lodge, boarders and Red family came to gave money, says, she in the This she mine.” man worked contend that invest, counsel this was to Steve holdings valued up his built nucleus which Steve acquired $40,000, although was not more than Lodge, until Red nor until after long family after the came to years. steadily for Steve had worked $4,000 in 1907 Plaintiff further testified that she received what had father in she payment from the estate this, asserts, given family used peddling, she was dwelling-house remodeling was the theater 1917. The again says money em- remodeled in she hers, again speaks money ployed earned peddling. family accord,
In 1920 were not in full Steve went Utah, In his where more than a month. he remained for him for plaintiff absence and sent the deed to sold house prop- not know that execution. claims she did She erty until, absent, name while he she discovered money spent given had two bank and that he notes to the given bootleggers, and liquor checks to and had saloons preventing that, purpose of further his return and for the on *7 compelled Steve liquor, waste of for she to deed the funds making secret could ac- property her. How deeds to the purpose complish bank account remained in this while the appear. Steve’s name does not attorney by deposition.- drew deeds testified who the testimony is to the that the were
His effect deeds executed went Utah told him wanted before Steve to and that Steve he property money deed the his wife because so much of her to to gone away; going into he he had it and was further testified that, complaint family on of members of the Steve that drinking gambling, gotten up and he had to Steve his office just making talked with him before and the and deeds gone thereafter home and for several Steve left months. telegrams disclosed had He that he received and letters from deposition, Roman family making the before but refused produce part deposition, them make to them 81 Mont.] Roman et al. came home from delivery, plaintiff testified that Steve
As to her the three April and handed office the law on deed, away.” In this Steve deeds, put “Here is the saying, neigh- her, while three daughters corroborate and three of the papers plaintiff them certain showed that in bors testified property turned all of the and told them that Steve had they merely saw her. these witnesses testified to Two of third, read in stated that papers hand, her he read to but, being asked, through interpreter, an deeds, on English. Plain- court, in not read them stated that he could know and did not she read the deeds tiff testified that never until sheriff part that a had been omitted April, her in upon served writ execution plaintiff On and reluctant cross-examination was evasive repeatedly by questions, to answer court intervened admonishing propounding to her answer questions her put interpreter questions that an her; demanded she sworn, attorneys, this was not made demand disregarded it, that she court record discloses questions very could answer such she cared to well without fell back interpreter. an When answer she crowded an upon “I reply, the time-honored not remember.” do much pertinent plaintiff.
So On for the hand, that, in cast other the record addition to the doubt shows showing delivery in deeds fact not until reversed the deeds were recorded this had Roman, the first Puutio v. conflicts and change plaintiff’s testimony, found in inconsistencies no management made thereafter, before, Roman exercised- absolute control property, managed theater, out over the and took all name. applied licenses in his He received all insur- policies running him as ance written his name and *8 attorney owner, including by who drew those written no owner had deeds and who knew that was not the Steve if fact he deeded it property, insurable interest had ' 81 Mont. —26 et al.
to his wife and pass- delivered the deeds with the intention of ing immediate title. All of was assessed to Steve. Roman, receipts and the tax and notices were made in his name, and, occasions, on several complaint he made of exces- claiming valuation sive without anyone he acted for- other than himself. Bach year Steve Roman his made federal income tax return based the income the theater as property, exemptions his and therein claimed head of the family supporter of the children made deductions depreciation in property, plaintiff his never made while All such return. these acts dominion were known to acquiesced by plaintiff. organ Id pipe was installed in the a cost theater $.9,750, and, contrary by statement made Veronica signed tnat she contract, signed by it was Steve Roman in own handwriting, payments were made from his bank account. Veronica further testified that checks on the signed .bank account by were herself other members of family, signed but all produced checks in court were Steve Roman. All on leases the restaurant property were made property. Roman as owner of that signed Steve Roman bail bonds and made thereto affidavit freeholder; that he awas he made a like pur- affidavit pose of securing the country. admittance a relative to the registered He special for a election of freeholders there- election, plaintiff after voted at such registered neither for nor voted at that election.
In support of her ownership assertion of of the theater building, plaintiff 1920’ testified that in was a mortgage there $18,000 upon paid off, saying which she first that it took years, four years; county then two records mortgage show May 3, was satisfied of record on plaintiff or week after the deeds are dated. While and the family members testified that she in control and that Steve acted under her and supervision, direction record discloses that knew she little of business or business *9 Roman Mont.] et Albert al.
[81 family and affairs of the affairs and Steve transacted the that managed own. business theater as his the of the of nature very in the not, and, Puutio defendant did negativing the testi- things, produce any not, could evidence funds with which mony plaintiff furnished to the effect that the delivered purchased the or the deeds were that in 1920. in- plaintiff
1. Counsel for criticise the trial [1] terrogating plaintiff, suggest that the judge thereby judgment were fore partisan findings became a and his partisan acquired by his shadowed bias the unconscious objection interposed and no ship. place, the first no specification exception no taken court and to the action of the lengthy state thereon; of is the rather error based therefore question ment How of counsel raises no determination. ever, judge reading that the a careful the record of shows only bringing out of purpose actuated the laudable facts, favorable to the possible, if whether facts were those suggestion plaintiff contains defendants, or no of partisanship. argument based plaintiff’s brief seems to be Counsel’s
upon this court record and theory that should take regard findings it determine the facts without plain- They say part of the trial court. on the proves conclusively tiff bona fides the deeds and accepted, and to overcome this delivery and must be so prove of these that each wit- evidence assert “one.must nesses, standing this including attorney an at the bar of state, wilfully deliberately perjury.” committed eliminated, concerned, attorney
So far as the he execution knew only as he testified as to the deeds delivery, judgment or nothing consideration findings “there was no consideration is based question, intention for, delivery “and no of” deeds placed they of record delivery thereof, and that were to make prosecution for the during pendency malicious case defrauding defeating hindering, delaying, de- purpose ’27 T. . [Dee. fendant Mae owing Sadie Puutio of amount to said defend- ant from the said partici- Roman, plaintiff pated in such fraudulent purpose and intent.” jurisdiction
As our here, cannot rule that this court [2] try equity cases de novo may only review the record purpose determining preponderance where lies the of the evidence and will when the reverse a .findings strongly preponderates evidence against *10 court, findings then will and not disturb when the evidence ground conclusions, furnishes reasonable different has been require too often and recently too au to citation of declared thorities. If,
3. under say proven the above must is rule, a fact we by the undisputed in record, must statement found we hold strongly preponderates that the evidence find- against the ings directly court, testifying the trial witnesses as certainly to the matter testified that was consideration there for, of, and delivery the deeds their execution time of in 1920. this, in
However, reviewing the evidence in such case as we are by following principles controlled well-settled law equity and by heretofore declared this court: Greenhood,
4. inAs the case of Merchants’ National Bank v. [3] 41 Pac. great issue in this case Witt, was fraud. De poetical words in of Mr. Justice opinion by in proven that case: “Fraud cannot often be direct evidence. Fraud conceals itself. upon It does not move straight ways. in goes in lines. surface It We devious may difficulty with know ‘whence it cometh and whither it goeth.’ It ‘loveth darkness rather light, than because its deeds lay are evil.’ It is that we can our rarely upon hand it in its going. likely We to it destination, are more discover at its know has started before we it its course. sinuous judicial searchlight When it, investiga we so discover of a goes lightens trail beginning tion back its it from game slight indications, woodsman by end. As the follows his displaced twig pebble, a broken or so become fraud Mont.] Roman apparent individually trivial, circumstances, by innumerable * * * strong proofs in their mass ‘confirmation ” holy writ.’ Owing
5. provable nature, by is circumstantial its fraud trivial, evidence, assembling and a wide in latitude is allowed are remote disconnected facts circumstances interpreted bringing together contemplating them all Conveyances, them “all one view” Fraudulent (Bump on 759), weighed this against evi- accumulation the direct charged dence those would perpetrating fraud who naturally swear in- to the bona fides the transaction under vestigation. therefore, not, reviewing We are in the record, precluded sustaining contained find- ings of the trial court record reason of fact positive contrary contains uncontradieted statements findings. those isNor the trial by such is not testimony; bound
bound to all appearance believe that it hears: and de “The meanor of witnesses, testifying, their manner probability improbability the truth statements all are to be considered connection with facts other witnesses, circumstances case. When the statements of *11 although positive, directly and not by contradicted wit other nesses, improbable, contradictory, are in them inconsistent selves, they alleged when relate to persons with transactions by dispute who death or are them, absence unable to when are the witnesses directly pecuniarily interested in * * * controversy, result of the attendant circum stances are such as to suspicion upon cast the entire transac tion as them, narrated wit disbelieve such disregard (Reid nesses testimony.” Hennessy v. Co., 45 383, Mont. 123 397; see, also, Merc. Bi- Pac. Daniels v. Co., 284, Casey 56 836; Metallic Mont. 184 Pac. v. Northern Co., 60 Ry. 56, 141; Senecal, Pac. 198 Warren Mont. Pac. v. 210, 71 71; 228 Pac. Mont. ex Hansen State rel. District v. Court, 126.) 72 Mont. 233 Pac. 245,
406 v. Albert
7. While near “badge is o£ fraud” and relationship not a [4] there is nothing the law to prevent man from trans ferring property King, (Dick to his is wife while he solvent 80 40, Mont. 257 itself 1022), Pac. the marital relation lends perpetration readily fraud, to the result and where the a transaction between husband is the foreclosure and wife persons satisfying just claims, third transaction “must subjected not, indeed, searching examination, be to the most if (Lambrecht v. suspicion” 266, 1063; 260, 38 Patten, 15 Mont. Pac. 592, State 186 ex rel. Robison v. District 56 Pac. Court, Mont. 335; 460); 210 Riddell, 466, Harrison v. Pac. Mont. surrounding suspicion where circumstances cast testimony concerning transaction, equity may such a a court of disregard testimony. (Security McIntyre, State Bank v. 618.) 186, 228 Pac. Mont. being paid As to the consideration [5] wife, testimony is vague unsatisfactory at prior something twenty years best. Plaintiff like said question $3,000 to date of the deeds she she had “gave Now, presumption to the man invest.” is that any aby gift (Bast to her husband is advancement wife Bast, 69, 345), Mont. rule as to result ing trusts, by section Revised Codes of is declared subject exception purchased that where the is to the placed money husband or the title with of a wife other, presumption, character, name rebuttable in gift conveyance (Clary Fleming, made is as a is that 546). 198 Pac. statement, quoted above, Plaintiff’s least consistent gift invested for himself he used or saw fit as theory money it is with she delivered the to him her, Roman’s invest for is almost con- arose. He clusive that no trust corroborated her statement $3',000, when she had asked she did with what “Well, just me replied, she handed it to neces- he as it was ’’ *12 sary. bought He property said he with the but when money, Mont.] Roman v. Albert et al. Mont. asked why name, replied, “Well, lie took title in bis own be ” * * * anything. because sbe didn’t me told justified
On this finding evidence tbe that conveyance consideration, voluntary. merely made was without (Security McIntyre, above.) Bank State
9. As tbe court tbe found deeds were never delivered [6] for tbe purpose of passing title and were only recorded purpose for tbe Puutio, of rule defrauding defendant a creditor claim in existence time whose at tbe conveyance of tbe may assert that fraudulent the transfer was does apply. not
10. Tbe evidence delivery as in 1920 deeds tbe [7] tbe purpose passing title is also vague, tbe manner property which.tbe thereafter bandied casts doubt probability tbe together delivery. Gathering of such a tbe “twigs” and “displaced marking fraud pebbles” trail of tbe found by tbe trial court, tbe composite picture is of a rather conveyance made plaintiff, at tbe insistence tbe take effect in tbe event home, tbe husband did not remain at eschew bis bad habits and properly and, conduct business; bis banging this club bead, ways. bis bis How mended may ever that be, even if tbe Lib deeds were turned over to erty Roman in possession does necessarily not show passing delivery title. Tbe parties intention tbe tbe time is controlling factor, tbe there de a valid livery turning without deed, delivery over tbe or no although grantee. (Martin tbe deed handed to tbe Flaharty, is Rep. 415, 40 Am. 287.) St. L. R. A. Pac. delivery, required grantor To constitute “it that tbe shall b,e unequivocally indicate bis intention it to that tbe instrument conveyance shall take effect in order to have produce (Springhorn that result.” Springer, 75 Mont. 803.) 294, 243 determining fraud vitiated tbe transaction as a
[8] conveyance take effect tbe date of recording instruments, tbe court was tbe aided tbe infer permitted it was ence wbieb to draw fraud tbe fol- *13 ’27 Ragsdale T. Bothman et v. lowing testimony: “badges Inade of fraud” shown quacy McIntyre, Bank consideration (Security State above); grantor (Hart-Parr Schafer, insolvency of the Co. possession of 675); Pac. retention above); property by grantor (Hart-Parr Schafer, Co. v. delay recording (27 490); unusual the deeds J.C. (27 grantor grantee assessment of the and not to 496). C. J. law,
Under the above, say we cannot declared findings clearly evidence preponderates against court, judgment trial must therefore hold that supported by the evidence. stated,
For the reasons is affirmed.
Affirmed. Callaway Mr. Chief and Associate Justices Justice Stark and Galen concur. result, MYERS: I concur in the not in
MR. JUSTICE opinion. all in the There are some that is said statements opinion which I do not subscribe. Respondents. BOTHMAN RAGSDALE, Appellant, al., (No. 6,226.) January 31, January 1928.) 1928. Decided (Submitted Bankruptcy Procedure Promissory Notes—Defense —Trial Records—Material —Burden Proof —Evidence—Judicial Only Need he Introduced —Notice to Creditors— Portions Jurisdiction—Presumption. Bankruptcy Court— Bankruptcy Promissory Notes —Defense Proof. —Evidence—Burden promissory on a note action In an defense was 1. payment been maker had absolved reason operation discharge proof as to claim, Burden 1. see A, L. E. in 2 note