Rosenberger v. Germo

Quinn, J. This action was brought, in June, 192-3, to set aside a deed to 165 acres of land in Red Lake county, executed by the defendants, Charles Germo and Florence Germo, his wife, to Mary Germo, dated December 1, 1921, and recorded in the Office of the register of deeds of said county on December 31, 1921, upon the ground that the same was made with intent to hinder, delay and defraud the creditors of said Charles Germo, including the plaintiff. The answer admitted the conveyance, but alleged that it was made in good faith, for a valuable consideration, and that the defendant, Mary Germo, received the conveyance in good faith and without any knowledge of any indebtedness from the defendant, Charles Germo, to plaintiff. The answer also contained a general denial. The reply was a general denial. The issues were tried to the court and an order for judgment, in favor of the defendants, was made and filed. The plaintiff moved for amended findings or for a new trial, and appealed from an order denying his motion. The principal question presented is as to the sufficiency of the evidence to sustain the decision of the trial court. The material facts, as shown by the proofs, are as follows: In 1921 and 1922, the defendant, Charles Germo, was a practicing physician and surgeon, residing at Balaton, Lyon county. He was also president of the First State Bank of Balaton. In January, 1921, he and three others, on behalf of the bank, executed their promissory note for $2,000, to the plaintiff, payable the following June, with interest. When the note became due it was renewed for 6 months, maturing on January 6, 1922. During the following October, suit was brought upon the note, and judgment was entered against Germo. The judgment was docketed in Lyon county on December 6, 1922, execution issued and returned, wholly unsatisfied, on March 1, 1923. *352 Title to tbe land in question stood in tbe name of Charles Germo and, on December 1, 1921, bis wife joining, be deeded tbe same to bis sister, Mary Germo, one of tbe defendants in tbis action. Tbe deed was recorded, in tbe proper office, on December 31, 1921. Dr. Germo- bad no debts of bis own at tbe time of tbe conveyance, nor was tbe note dne. Tbe bank was, at that time, a running concern. After tbe conveyance was made, be leased tbe farm and received less than $50 as rent therefrom, which was applied in part payment of taxes. There was no money passed between him' and bis sister at the time of tbe transfer. Tbe sister’s deposition was taken and read in evidence by tbe plaintiff. While her testimony was vague and uncertain, it indicated tbe element of veracity. She testified that she did not know, at tbe time, the deed was executed; that it was not delivered to her, and that she knew nothing about it until after it was recorded; that she and her brother bad some money transactions, and that be wrote her about the deed, but she bad thrown tbe letter away and bad forgotten its contents. Tbe doctor testified, in effect, that, when their father’s farm in Blue Earth county was sold, after bis death, the sister’s portion was turned over to him, and, with it, he purchased the land in question for her, taking title in himself, and that it was for tbis reason only that be deeded tbe land to her, and that be bad never owned any interest in tbe farm. Tbe court found, as matters of fact, that, neither at tbe time of tbe execution of tbe deed nor at tbe time it was recorded, was tbe defendant Charles Germo insolvent, but that be was insolvent at tbe time plaintiff recovered judgment against him; that tbe conveyance was not made with intent to binder, ■ delay or defraud creditors, but was made voluntarily andi without any other consideration than $100, which Charles Germo was then owing to bis sister, Mary Germo, and that, at the time, tbe latter did not know that Charles Germo was indebted to any party whatsoever. Under tbe proofs, as contained in tbe record, tbe trial court was clearly right in its findings and conclusions, nor do we think there was any abuse of discretion in tbe denial of plaintiff’s motion for a new trial upon tbe ground of newly discovered evidence. Affirmed.