Bank of Commerce v. Mallicoat

Beck, P. J. (After stating the foregoing facts.) The issues made under the evidence in this case should have been submitted to the jury under proper instructions, and the court erred in directing the verdict. The evidence shows that on November 2, 1904, W. M. Eich and his wife, Mrs. Mary B. Eich, the parents of Mrs. Mary Mallicoat, executed a bond for title, obligating themselves to convey the land in controversy upon which the house referred to was built to H. D. Mallicoat and Mary E. Mallicoat; and that on November 27, 1914, a deed was executed by W. M. Eich and Mary B. Eich to Mrs. Mallicoat. There is evidence showing that H. D. Mallicoat is insolvent; and evidence from which the jury might have found as true the contentions of the bank that the house on the land was built with money which was loaned to H. D. Mallicoat on the faith of his representations in reference to his interest in the land upon which the house was constructed; and that the execution of a deed to the land to Mrs. Mallicoat individually, while the bond for title was an obligation to convey to H. D. Mallicoat and his wife, was for the purpose of hindering, delaying, and defrauding creditors. The refusal of the court to submit this issue to the jury may have been upon the theory that inasmuch as the plaintiff had stricken the [266] prayers of the petition for a cancellation of the deed and had stricken the name of W. M. Rich individually and as administrator, the plaintiff could not attack the deed from the parents of Mrs. Mallicoat to her. If this was the opinion of the court, it was in part erroneous; for while after striking the names of the grantors m a deed an action to cancel the deed could not be maintained, nevertheless it was competent for the plaintiff to proceed and show by evidence that the deed as it stood was a part of a scheme to defraud. creditors, and the cancellation of the deed was not necessary to the maintenance of this part of the plaintiff’s action. It was sufficient for the plaintiff’s action to show that the money obtained from the plaintiff by the defendant, PI. D. Mallicoat, was obtained by his representations that he owned a half interest in the land and that he had paid for the land, and that the title had been placed in his wife in pursuance-of a scheme, and that the husband had, with the money borrowed from the bank, erected expensive improvements upon the land, which was considerably in excess of the value of the land without the improvements. And if the jury found from the evidence in favor-of these contentions, there should have been a judgment for the plaintiff, not only for the amount of money found to be due, but that should have been made a special lien upon a half interest in the property described in the petition. We say a lien upon one half interest in the property, as this is the interest that the plaintiff insists upon, and it is not claiming that there should be a lien upon any greater portion of the property. For the reasons stated the judgment of the court below will be reversed Judgment reversed. All the Justices concur.