Seekel v. Winch, 78 N.W. 821

Seekel v. Winch

78 N.W. 821

Iowa

1899

Check Treatment

Deemer, J.

Jаnuary 1, 1888, Seth F. Winch made and executed a promissory note to plaintiff, upоn which she obtained judgment in the district court of Harrison county on the twentieth day оf April, 1896. In that action a writ of attachment issued, and was levied upon the prоperty in controversy. The court, in rendering the judgment, which was a personal оne, ordered that the property levied on be sold under special еxecution. Prior to May 10, 1892, Seth F. Winch was the owner of the real estate leviеd upon, and on that day, or when the deed was aknowledged, which was on the ninеteenth day of September, 1892, he transferred the same to Mrs. Miranda J. Mitchell (nоw Winch), for ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the expressed consideration of five hundred dollars. The deed covered, not only the lots and lands embraced in this suit, but also all notes, mortgagеs, and other personal property owned by the grantor in this state. This suit is to set aside this deed upon the ground that it was without consideration, and made with intent to hinder, delay, and defraud the creditors of Seth Winch. The defendants, other than the Winches, are said to be purchasers of a part of the property, who obtained their title after the order for sale under special exeсution. These defendants made no defense. Miranda J. Mitchell and Seth F. Winch werе married on May 16, 1892. For four or five *104years sbe bad been bis housekeeper. On. tbе ninth of May they entered into tbe following contract: “Omaha, May 9th; 1892. This contract, entered into by and between S. F. Winch, party of the first part,, ánd Miranda J. Mitchell,pаrty of the second part: ' The'said Miranda J. Mitchell agrees to take care of the said Seth F. Winch the remainder of his life, provided the said Miranda J. Mitchеll shall outlive the said Seth F. Winch, and I to deed to the said Miranda J. Mitchell such part of my property I now own as I wish her to have for her services for looking аfter me and my home in my declining years; her to see me safely laid away in my last resting place, should she outlive me. Seth F. Winch, Miranda J. Mitchell.” It is claimed the deеd in question, which bears date May 10,1892, was executed pursuant to this contract, and in execution of an agreement for a settlement upon Mrs. Winch after hеr marriage. It is also claimed that Seth F. Winch had a large amount of proрerty ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in the states of Rhode Island and Minnesota at the time the deed was executed. Mrs. Winch had no property at the time she married Winch, and the convеyance, if it be sustained, must be based upon the theory that it was, in effect, an аntenuptial settlement, or based upon the value of services renderеd, and to be rendered in the future, by Mrs. Winch. We do not think the evidence sustains the claim that the property was deeded pursuant to an antenuptial agreement or as an antenuptial settlement. The deed which was actually madе goes far beyond the contract which preceded it. Indeed, the contract makes no reference to any contemplated settlement. But, if it be true that the deed was intended as a settlement, we do not think it. can be sustаined; for the reason that the property conveyed is grossly out of proportion to the station and circumstances of the husband, and, in view of the subsequent disposition he made of his other property, was dearly fraudulent. Gordon v. Worthley, 48 Iowa, 429; Herring v. Wickham, 29 Grat. 628; Prewit v. Wilson, 103 U. S. 22. If the consideration was support furnished, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and to be furnished, by Mrs. Winek, *105it was- voluntary, in so far as it ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍was founded on future support. Shaw v. Manchester, 84 Iowa, 246; Harris v. Brink, 100 Iowa, 366, and cases cited. As tbe conveyance wаs voluntary, tbe burden is upon tbe wife to sbow that at ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍tbe time of tbe conveyance ber husband bad enough other property to pay tbe plaintiff’s claim. Baxter v. Hecht, 98 Iowa, 531; Tyler v. Budd, 96 Iowa, 29; Strong v. Lawrence, 58 Iowa, 55. This shе has failed to do-. If there be any evidence to establish property in tbe husband at the time of tbe conveyance, it shows that such property, exсept a small bank deposit, was in another jurisdiction. Plaintiff was not compelled to resort to such property, and, as tbe evidence satisfies us that tbe conveyance was in fact fraudulent, the trial court did not err in setting it aside.- — Affirmed.