Cowart v. Epstein & Brother

Little, J. Certain executions against the firm of Moring & Cowart were levied on two town lots as the property of W. H. Cowart, a member of the firm. Claims were interposed by D. C. Cowart. The cases were tried together, and the verdict rendered found the property subject. A motion for a new trial was made on the ground that there was no evidence to support the verdict. After the executions were put in evidence, the plaintiffs introduced a deed, dated January 2d, 1892, conveying the land to W. H. Cowart. The judgments against the firm of Moring & Cowart, on which the executions levied on the land had issued, were rendered, respectively, July 7th, 1893, and April 9th, 1894. The claimant D. C. Cowart introduced a deed conveying the property levied on, by W. H. Cowart to himself, dated July 2d, 1893; and testified to the good faith of the transaction, the payment of the purchase-money, ignorance of-the claimant as to insolvency of the firm at the time of the ■deed to him, and possession by himself under the deed. [4] If the conveyance of the property to the claimant was made to hinder, delay or defraud his creditors, by the defendant in execution, and such intent was known to the claimant, the conveyance of course is void, and being so, the property would be subject. It is true that the bona fides of the transaction is a question for the jury; but it must be remembered that though fraud is subtle and slight circumstances may be sufficient to show its existence, it is not to be presumed. Civil Code, § 4029. In the case before us, plaintiffs showed various suits for small amounts pending against the defendant just prior to the date of the conveyance to the claimant; also the tax returns, for 1893, as well as the record of suits and judgments subsequently brought and rendered against W. H. Cowart, the defendant in fi. fa.; also an undated agreement made by him to-rent the premises, to begin November 15th, 1893. Per contra is the evidence of the claimant, who, so far as the record shows, is a credible witness. His testimony is full and to the point on the question of good faith of the transaction, payment of the consideration, adequacy of the price, and want of knowledge-of the insolvency of his grantor. ■ The circumstance of the undated agreement signed by defendant in fi. fa. loses its force against the bona fides of the claim, by absence of the date at which it was made. The return for taxation may have antedated the conveyance to the claimant. These circumstances, with the record of the suits, are not sufficient to taint the deed with fraud as against the evidence of the claimant. It may be that the conveyance was made to defraud the creditors of the grantor, but we can not. say it is so, and, without more evidence, the verdict finding such to be the case, would seem to rest on presumption of that fact, rather than a sufficiency of the circumstances to carry conviction of the fact. We think the circumstances set out in the brief of evidence insufficient to support a verdict setting aside the deed. Hence the judgment, overruling the motion for new trial, is Reversed. All the Justices concurring.