Wasson v. Millsap

77 Iowa 762 | Iowa | 1889

Given, C. J.

I. The controlling question in this case is whether the conveyances by Albert Millsap to his wife, by means of which she came into the title to the property in question, were with fraudulent intent to defeat the collection of the plaintiff’s judgment, and, if so, whether Mrs. Millsap participated in that intent, or had notice of such facts as would have put her upon inquiry that would have led to a knowledge of such fraudulent purpose. The right of husband and wife to contract with each other with respect to the separate property of either is well established in this state. There is no question but that, where by valid agreement either becomes the debtor of the other, the law will uphold the agreement. The rights of parties where husband or wife makes advancements to the other is clearly defined in Hanson v. Manley, 72 Iowa, 48. This is not a question of authority to contract, nor of advancements, but, as already stated, the question is whether the conveyances under notice were made and received with intent to defraud the plaintiff. It is claimed on behalf of defendants that these conveyances were executed and delivered in pursuance of the verbal agreement as testified to by them, and that, the agreement being executed, it is binding upon all parties. By the agreement, as stated, Albert Millsap held the title to all the property realized from the proceeds of the sale of Mrs. Millsap’s farm, as well as of all other real estate to which he acquired title; thus giving him such financial standing as would be inferred from the ownership of the property in his name. Mr. Millsap owned, and, indeed, as is shown by the testimony, did receive credit on the faith of his being the owner of, the real estate standing in his name. By the agreement as stated he was liable to be divested of all his property, “be it much or little,” at any time, at the instance of his wife, and without any notice whatever to his creditors that she claimed any such right against the property in his name. Mr. Millsap incurred the liability for which judgment was entered in favor of the plaintiff in September, and concealed the fact from the plaintiff, so that he did not discover it until the following March. After incurring this liability Mr. Millsap executed the deeds to his wife without other consideration than that embraced in the parol agreement. At the time of executing one of them he said to Mr. McElroy, who drew the deed, “that he was in the patent-right business, dealing with various men, and did not know but that he might have some trouble, and he wanted to execute the deed to that property to his wife in order to be safe if he should have trouble; that he did not want to record it unless it should be necessary.” This testimony was objected to on the grounds that it was a confidential communication to McElroy as an attorney. We do not think the relation of attorney and client existed. McElroy was acting simply as a scrivener in preparing the deed. Mr. Millsap’s offer of one hundred and fifty dollars in satisfaction of the twelve hundred dollars, when pressed for payment, with the remark : “You had better take that because it is more than you will ever get,” his declarations to McElroy, his concealment of the sale of Pennsylvania, the times at which he executed the deeds, and other circumstances appearing in the proofs, leave no doubt in our minds but that he made the conveyances with intent to defraud the plaintiff in the collection of his judgment. In view of the relation of the defendants, the kind of agreement upon which Mrs. Millsap claims the right to accept these conveyances, the time at which they were made, and all the attending circumstances, we think the inference is fully warranted that Mrs. Millsap knew of the fraudulent purpose for which the .deeds were being made to her by her husband. This case is distinguishable from other cases in which this court has recognized the right of husband and wife to contract the relation of debtor and expeditor. We are of the opinion that the agreement in pursuance of which these conveyances were made is void as to the creditors of Albert Millsap, and that the title to the property in question was vested in Mrs. Millsap, with intent to-defraud the plaintiff in the collection of his judgment. The decree of the district court is therefore

Affirmed.