19 S.D. 317 | S.D. | 1905
This action was brought by the plaintiff to subject certain property standimg of record in the name of the wife, Eliza Morrow, to the payment of the debt of her husband, Joseph Morrow. The case was tried by a referee, and his findings were confirmed by the court. The findings and judgment being in favor of the plaintiff, the defendants Joseph Morrow and Eliza Morrow have appealed.
The plaintiff, in his complaint, alleged, in substance, that • Joseph Morrow and Eliza Morrow were husband and wife; that certain judgments set forth in the complaint were entered against the husband; that the land standing in the name of the wife was in fact the land of the husband, paid for by him out of his own means, and that the deed was taken in the name of the wife for the purpose of hindering and defrauding creditors of the husband and preventing them from collecting their debts; that some time before the recovery of the judgment referred to, Joseph Morrow, acting through the agency of his associate, Eliza Morrow, entered into a contract in writing with the defendant Tompt, wherein it was agreed to sell and
The defendant Eliza Morrow sets up in her answer as a-defense to the action that she bought the property described in -the complaint more than ten years prior to the bringing of this action from one G. H. Brewer, and pleads the six-years statute of limitation; and as a second defense sets up substantially the same facts and pleads the ten-year statute of limitations. For a third defense she denies that her codefend-ant Joseph Morrow ever had any interest of any kind in the property described in the complaint; denies that he bought the said land from the said Brewer, or paid the consideration therefor, or had the title pub in the name of this defendant for the purpose of defrauding the creditors of her codefendanb Joseph Morrow dr any other party whatsoever; she denies
The findings of the referee are, in substance, as follows: That the defendant Joseph Morrow at all times alleged in the complaint was the owner of the land and premises described in the complaint; that the defendant Eliza Morrow was his trustee, holding under a title subject to his disposal and control; that said Joseph Morrow at all times until the conveyance to the defendant Tompt had the sole and exdusive possession of the said property, to have and use for his own personal benefit and profit all the proceeds derived therefrom; that he paid all the consideration for the said property from his own means, and said defendant Eliza Morrow contracted no part thereof, and never had any interest in said property; that on or about the 28th day of March, 1901, defendant Tompt entered into a written contract with the defendant Eliza Morrow for the purchase of said land and premises; that said Eliza Morrow then acted not in her own behalf, but as trustee for defendant Joseph Morrow, and received the $400 then paid as such trus
On September 19, 1903, from the foregoing facts the referee concludes, in substance, that the defendant Morrow was on the 18th day of November, 1902, the date of the levy thereon, the sole owner of the note for $2,500, together with the accrued interest thereon, given by the defendant Tompt to the defendant Eliza Morrow, and the same was subject to levy and sale under the execution issued in favor of the plaintiff against said defendant Joseph Morrow upon the judgment described in the complaint in this action; that the said defendant Eliza Morrow has not, and never had, any right, title, or interest in the note referred to; that she should be ordered and adjudged to deliver the same to the sheriff of Lincoln county, to be by him collected or sold under and by virtue of plaintiff’s claim against her codefendant Joseph Morrow; that plaintiff have and recover from defendant Joseph Morrow the costs and dis bursements ol this action in addition to the recovery of the amount of the note of said defendant Tompt; that the balance due upon said plaintiff’s judgment after applying the proceeds of said note, $2,500, should be adj udged and decreed to be a lien upon the premises described in the complaint.
It will be observed from the findings of fact that plaintiff offered no evidence to sustain the allegations of fraudulent intent on the part of the defendants in placing the property in the name of Eliza Morrow, and relied solely upon the proof of the trust relation between the defendants Morrow regarding the real estate and the note for $2,500 referred t'o in the complaint and findings. The allegations, therefore, that the prop
It is contended by appellants that where property paid for by the husband is conve/ed to the wife, the presumption is that it is an advancement made for the benefit of the wife by the husband (Bem v. Bem, 4 S. D. 138, 55 N. W. 1102; Dorman v. Dorman, 187 Ill. 154, 58 N. E. 235, 79 Am. St. Rep. 210), but that presumption cannot obtain in this case, for the reason that the defendants both deny that the husband paid any part of the consideration for the property, and insist that the property was purchased by Eliza Morrow in her own name for her own benefit, and that she paid the consideration therefor; and such was the theory of the defendants in the trial of the case in the court below. Hence it is not necessary to give any consideration to that presumption in this case.
It is further contended by the appellants that the action is barred by the statute of limitations, but clearly this contention is untenable, for the reason that it is alleged in the complaint and proven on the trial that the plaintiff’s judgments to which he seeks to subject the property in payment were recovered in September, 1902, and clearly prior to that time the bar of the statute did not commence to run as against the plaintiff. Weaver v. Haviland, 142 N. Y. 534, 37 N. E. 641; Blackwell v. Hatch, 13 Okl. 169, 79 Pac. 933; Taylor v. Lander, 60 Pac. 320; Corey v. Greene, 51 Me. 114; Howe v. Whitney, 66 Me. 18; Taylor v. Bowker, 111 U. S. 110, 4 Sup. Ct. 397; Gates v. Andrews, 37 N. Y. 657; Watkins v. Wilhoit, 104 Cal. 395, 38 Pac. 53, Id., 35 Pac. 646. In Weaver v. Haviland, 142 N. Y. 534, 37 N. E. 641, the Court of Appeals of New
The only further question, therefore, presented which we deem it necessary to consider is as to which of the two, the husband or wife, was in fact the owner of the property in controversy in this action. As before stated, the appellants contend that the findings of the referee are not supported by the evidence, in that the evidence shows that the wife purchased the property and paid for the same. On the other hand, the plaintiff contends that the evidence clearly shows that the property was in fact purchased by the husband, and paid for by him, and that the conveyance was taken in the name of the
Section 303, Rev. Civ. Code, provides as follows: “When a transfer of real property is made to one person and the consideration therefor is paid by or for another a trust is presumed to result in favor of the person by or for whom such payment is made.” This section embodies the common-law rule. Garfield v. Hatmaker, 15 N. Y. 475. In the Civil Code
We have not deemed it necessary to review the many cases cited by the appellants in support of their theory of the case, as the principles governing this class of cases are too well settled to require any discussion of the authorities. As before stated, courts of equity seek to discover the real transaction between parties involved in the cases before them, and, m order to ascertain what the real transaction is, they may disregard formal instruments in which it is sought to cover üp the real transaction under certain legal forms, and it is rarely that a court of equity is misled by the interposition of such formal documents from ascertaining the real transaction. Courts of equity are too familiar with the various attempts of parties to cover up and conceal their real intention by means of legal forms to be deceived by them, and where, as in the case at bar, the real intention of the parties is so clearly established by the evidence, such courts would be of little use if they could not, regardless of the various legal forms, ascertain the real intention of the parties.