25 S.D. 351 | S.D. | 1910
This is an appeal from a judgment for plaintiff and from an order overruling defendant’s motion for a new trial. The action is on the equity side of the court; the plaintiff seeking relief against the defendants Cleaver and Lapier and one Chas. E. Young, as sheriff of Beadle county. Plaintiff seeks to enjoin the sale of a certain quarter section of land under an execution issued upon a judgment in favor of Cleaver and Lapie'ggainst F. M. Smith, her husband. The action was tried by the court, who made findings of fact and conclusions of law, and entered a judgment awarding plaintiff the relief prayed for. The assignments of error are very numerous, a large number of them relating to rulings by the trial court on questions of evidence. We have given these various rulings careful consideration, and are of opinion that none of them are prejudicial to appellants’ rights' or would warrant a reversal of the case. A review of the several rulings would serve no> useful purpose, and we shall not attempt it. The other questions presented relate to the refusal of
The complaint alleges, in 'substance: That the defendants Cleaver and Eapier were partners doing business under the firm name of Cleaver & Eapier, and that the defendant Chas. E. Young was sheriff of Beadle county. That on the 18th day of March, 1907, in an action in the circuit court of Beadle county, the defendants Cleaver and Eapier recovered against E. M. Smith, husband of plaintiff, a judgment in the sum of $872.94. That on the 15th day of October, 1907, an execution was issued upon said judgment and delivered to the defendant Young as sheriff, who has levied upon a certain quarter section of land, which is the property of the plaintiff, and has given notice of the sale of said property March 19, 1907. Plaintiff specifically alleges that said F. M. Smith was not at the time of the entry of said judgment nor at the time of such levy and notice, and never was, the owner of said quarter section of land; that plaintiff is and was at the time of said levy and judgment, and -for a long time prior thereto, the owner in fee simple of said land; and that the judgment against F. M. Smith is not a lien upon same, and that the defendant Young as sheriff is without right or authority to levy upon or sell the same. Plaintiff further alleges that she became the owner of said land about the 2d day of July, 1901, by purchase from one Alexander, and that her purchase was made in g'ood faith for a consideration paid by her out of her own money, and that title thereto- was taken in the name of said F. M. Smith” by a deed, which was recorded in the office of the register of deeds of . said county on August ' 19, 1901. Plaintiff further alleges that on the 17th day of September, 1901, the said F. M*. Smith by a warranty deed -duly transferred the land levied upon, together with other lands, to this plaintiff, and that said conveyance' was duly made pursuant to the original understanding between her husband and herself that all of said property belonged to her; -that the deed from said F. M. Smith to. plaintiff was recorded in Beadle county on the 15th day of September,
Defendants by their answer admit the issuance and levy of the execution upon the lands described in the complaint, but deny that plaintiff is the owner of said land or has any title thereto, or that she was ever the owner thereof, but -allege that -her husband, said F. M. Smith, is and was at all times mentioned the- lawful and rightful owner thereof, deny that -the plaintiff paid for said lands out of her own money, but allege -that the deed from the said F. M. Smith to plaintiff was executed and placed of record with the sole intent of defrauding, hindering, and delaying the creditors of plaintiff's husband, and more especially the defendants Cleaver & Papier in the collection of their judgment against the isaid F. M. Smith. Defendants further allege that -the said F. M. Smith early in 1901 purchased with his own money a tract of land in Beadle county, aggregating more than 1,200 acres, for a consideration -of about $12,000, and that the land described in the complaint is part of the land iso purchased; that title to- all of said land was taken in the name of F. M. Smith, and the deeds therefor placed of record in Beadle county; that -the title to said lands remained in F. M. Smi-th, until August 8, 1906, when there was filed for record a deed from him- and the plaintiff his wife ■to one Pnnenga for 800 acres of said- land, which lands defend-
Appellant’s proposed findings of fact which were refused by the court follow very closely .the allegations of the answer, as above set forth. It will be observed .that the theory of appellant’s answer is that the deed from F. M. Smith to the plaintiff .was fraudulent and without consideration; that the lands were paid for by him, and not by the wife; that the deed to the wife was fraudulently withheld from record by her; and that she knowingly permitted him to hold himself out to- the world as the owner of the land. Upon the issues thus presented the trial court made •the following findings of fact, which are fully sustained by the evidence:
“(1) That Mrs. Jennie E. Smith paid for all of ¡said land with -her own money. That her husband, E. M. Smith, acted as her agent, and negotiated the purchase of said land in Huron, S. D., while this plaintiff was at her home in Vermillion, Clay county, S. D., and that the title to all but two of the nine quarters -purchased at the time was taken in the name of F. M. Smith*358 without the knowledge of the plaintiff, and the land involved in this action was taken in the name of F. M. Smith.
“(2) On the 17th day of December, 1901, the said F. M. Smith made, executed, and delivered to plaintiff a deed of all of the lands so purchased by her, but taken in his name, being seven quarters in all, including the land involved in this suit. That, after this deed was delivered to the plaintiff, she placed it in her bank box, and that it remained there until about the 15th of February, 1907, when she sent it to Huron and had it recorded in the register of deeds office, Beadle county, S- D., in Book 154, p. 330- * * *
“(6) The court further finds that there was no fraud in the making and the delivery of the deed of the land in controversy on the 17th day of December, 1901, from F. M. Smith to Jennie F. Smith, and that there was no fraud in the recording of said deed by her on the 15th day of February, 1907; that she was the real owner of said land; that she paid for it with her own money, and had a perfect right to demand, receive, and record the deed for said land from F. M. Smith.
“(7J The court further finds that Jennie K. Smith was the owner- in fee of said lands on the date of entry of judgment against the said F. M. Smith, towit, the 18th day of March, 1907, the date of -the levy of the execution thereon, and that the said F. M. Smith had no interest therein.”
And as a conclusion of law the court found: “(3) That the conveyance of said land from F. M. Smith to Jennie E. Smith on the- 17th day of December, 1901, was not a fraud upon creditors of F. M. Smith, but was made in good faith and for a valuable consideration.” It will be observed that every materal issue presented by the answer is fully covered by these findings of the court.
Appellants’ proposed findings, other than -those covered by the findings above quoted, relate solely to allegations- of matters in the answer which are -purely evidentiary, and not the ultimate, facts. All -these evidentiary circumstances were received in evidence by the court, and were doubtless given their legitimate
Appellants’ further contention rests upon the alleged fraudulent conduct of plaintiff in concealing and withholding- her deed from record. The findings of the trial court, which are sustained by undisputed evidence, establish the fact that -the lands referred to were purchased with the wife’s money; that the deed from her husband was made and delivered to her in good faith, and for the sole purpose of vesting in her the legal title to such land; and that her act in placing her deed of record was not for the purpose of hindering or delaying the creditors of the husband, ■but because she was the real owner of the lands, and had a perfect right to record the deed. These findings eliminate every possible contention of actual fraud on .the part of' the wife. But ■the question remains as to the effect upon creditors of the husband of the- neglect or .failure of the wife to- place her deed of record. The failure of an honest grantee to place his deed of record is sometimes held to operate as an estoppel upon the grantee in favor of the creditors of the grantor. In such cases the estoppel is founded upon the negligent conduct of the grantee, which is held to constitute a constructive fraud upon the creditors of the grantor. A constructive fraud under the law of this state consists “in any breach of duty which, without an actual fraudulent intent, gains an advantage to the person in fault, or any one claiming under him by misleading .another to. his prejudice, or to the prejudice of any one claiming under him.” Civ. Code, § 1202. But the doctrine of constructive fraud, as applied to the caise of the merely negligent failure of a grantee to record his conveyance, does not render the deed itself void, but only estops the grantee from claiming his rights under the deed, to the prejudice of the creditors of the grantor. Hence it is universally held by the courts that withholding a deed or mortgage from record cannot
A careful examination of the answer of defendant, of the proposed findings, and of the whole evidence fails to reveal alie