Lewis v. Herrera

DOAN, J. On August 25, 1903, while it. Allyn Lewis and Laetitia M. Lewis, his wife, were in Germany, Lewis signed and delivered to his wife a deed of gift, conveying to her certain real property in Phoenix, Arizona. The deed was not acknowledged until January 9, 1904. On December 29, 1903, Lewis signed and delivered to his wife another deed, conveying to her as a gift the same property, but with a more accurate description, which second deed was also acknowledged on January 9, 1904. Both deeds were recorded in Maricopa County, Arizona, on the sixteenth day of January, 1904. In November, 1903, Lewis became indebted to the International Bank of Nogales, which indebtedness was subsequently, in June, 1904, sued on by Fred Herrera, the receiver of the bank, and merged into a judgment against Lewis. On August 25, 1902, Lewis was solvent, but on January 9, 1903, was insolvent. The suit at bar was brought by Herrera, receiver, to set aside the deeds and subject the property therein described to an execution under this judgment. It is admitted that there is no fraud in fact, or no intent in the mind of Lewis to defraud his creditors in the transfer made. The district court rendered judgment for the plaintiff upon an agreed statement of facts, submitted by the respective parties, and set aside the deeds and adjudged them to be void and of no effect against the plaintiff Herrera, and as against the levy on and the sale of the property under execution, under the judgment theretofore rendered in the ease against Lewis in June, 1904. Appellant has assigned as error that “The court erred in rendering judgment for the plaintiff upon said statement of facts, and in holding that the transfer of the property by the deed, executed in Germany in August, 1903, by the husband to his wife, did not carry immediately the whole title to the premises, and in holding that until the same was acknowledged and recorded it was a legal fraud upon the creditors of the husband, arising and becoming such creditors after the signing and delivering of the deed, and before the acknowledgment.” There is but one question presented in this case, and that is the operative effect of the deed from Lewis to his wife, [77] dated August 25,1903, as against the bank to which he became indebted in November following. The contention of the appellee herein is that under the laws of Arizona no conveyance of real property is valid, as to third persons, unless it is signed by the grantor and duly acknowledged before some officer authorized to take acknowledgments, and properly certified to by him for registration; that the deed of August 25th, therefore, did not become effective as an instrument to convey title until it was acknowledged on January 9, 1904. This case presents a simple question of statutory construction. Paragraph 725 of the Revised Statutes of 1901 reads: “Every deed of conveyance of real estate must be signed by the grantor, and must be duly acknowledged before some officer authorized to take acknowledgments, and properly certified to by him for registration.’’ Paragraph 2698 reads: “Every gift, conveyance, assignment, transfer, or charge made by a debtor which is not upon consideration deemed valuable in law shall be void as to prior creditors, unless it appears that such debtor was then possessed of property within this territory, subject to execution, sufficient to pay his existing debts. . . .” The provisions of paragraph 725, above cited, seem' to us to permit of but one construction. When it says that every deed and conveyance of real estate must be signed by the grantor and must be duly acknowledged before some officer authorized to take acknowledgments and properly certified to by him for registration, it is equivalent to saying that no deed, unless executed as therein provided will operate to effect a conveyance of real estate. This construction has been followed in the interpretation of a similar statute in Alabama by the supreme court of that state in Hendon v. White, 52 Ala. 597; Chadwick v. Carson, 78 Ala. .116; Watson v. Herring, 115 Ala. 271, 22 South. 28. The United States supreme court, in Clark v. Graham, 6 Wheat. 577, 5 L. Ed. 334, and the supreme court of Ohio, in Smith’s Lessee v. Hunt, 13 Ohio, 260, 42 Am. Dec. 201, have also placed a like construction upon a similar statute. Neither the deed of August 25, 1903, nor of December 29, 1903, was effective to convey title, until acknowledged January 9, 1904; and before that date the bank became a creditor of the grantor, Lewis, and, as is admitted in the agreed statement of facts, Lewis was not then possessed of property within this [78] territory subject to execution sufficient to pay his existing debts. The deeds, being deeds of gift, were both void as to the bank, and as to Herrera, the receiver, under the provisions of paragraph 2698, above cited. The judgment of the lower court is therefore affirmed. SLOAN, J., and CAMPBELL, J., concur. NAVE, J., having been of counsel in the case below, took no part.