Ollason v. Glasscock

PHELPS, Superior Judge (After Stating the Facts as Above). — This action was instituted by Mrs. Burke, appellant’s grantor herein, to enjoin the sale of the property in question by the sheriff of Yuma county upon the order of sale hereinbefore mentioned, and to adjudge title to said property to be in appellant’s grantor, and that defendant Glasscock be decreed to have no interest therein by reason of his said writ of attachment or execution. The defense intérposed by defendants is to the effect that the transfer of the property in question from Mulford to Burke was made with the intent to delay, hinder or defraud creditors; that Glasscock was a creditor of Mulford upon the date of the transfer; and that said conveyance was, under the laws of this state, void as to him. Appellant’s grantor filed her reply, and issue was joined upon these questions which in the last analysis were the only questions to be determined by the trial court; that is, to wit, first, was the conveyance in question fraudulent and void as to creditors? and, second, was Glasscock a creditor of Mulford on the date of the conveyance? The cause was tried to the court without a jury, and judgment rendered for appellee, from which an appeal has been taken to this court. Appellant has presented for the consideration of the court twenty-seven assignments of error, and urged that each constitutes reversible error. Many of the assignments are not sufficiently specific in character to enable the court to determine the ground — 199 — upon which they are predicated without reference to the argument relative thereto, and therefore will not be considered by the court. County of Pinal v. Heiner, 24 Ariz. 346, 209 Pac. 714, and cases therein cited. Assignments 4, 5, 6, 13, 14, 16, 17, 18, 19, 21, 22 and 23 are predicated upon the expressions of the trial court in its written opinion incorporated in the record. It is clear from reading the statute relating to appeals that such opinion does not properly constitute any part of the record on appeal, and is in no sense an order from which an appeal will lie. The mere fact that the opinion contains an order for judgment is immaterial, in that the records disclose that the order for judgment was in fact entered by the clerk on the minutes of the court on the date such opinion was filed, and appears in the record. Even, however, if the order for judgment embodied in the opinion were the only order for judgment appearing in the record, only the order itself would be reviewable by this court, and the reasons advanced by the court as disclosed by the opinion would be necessarily treated as surplusage, in view of the fact that the opinion shows upon its face that it is not intended as a finding of fact. In the absence of written findings of fact it will be presumed that the conclusions of the trial court on every necessary issue of fact were such as would support its judgment. Blackford v. Neaves, 23 Ariz. 501, 205 Pac. 587. It is urged that the verification of the defendant’s answer is defective, and under the rule laid down in Hankins v. Helms, 12 Ariz. 178, 100 Pac. 460, plaintiff was entitled to judgment on the pleadings. We do not think the rule therein enunciated is applicable, where the answer, as in this case, contains affirmative allegations diametrically opposed to the allegations contained in the complaint. Such affirma — 200 — tive allegations as effectually and effectively deny all the material allegations of the complaint as if they had been specifically denied* in express language. Had the answer consisted of express denials of the allegations of the complaint, then the rule laid down in the case of Hankins v. Helms, supra, would apply. It is claimed in assignments 2 and 3 that the trial court erred in refusing to strike certain portions of paragraphs 2 and 3 of the answer. We cannot agree with counsel that the allegations complained of in paragraph 3 constitute a legal conclusion, and, even if it were true, the cause having been tried to the court without a jury, the refusal of the court to strike it, if error, would be harmless, unless the records disclose that the judgment of the court was in part based thereupon. It is presumed in the absence of a written finding of fact that the trial court ignored incompetent evidence. Wamble v. Evants, 23 Ariz. 307, 203 Pac. 554. And the presumption necessarily follows that the court ignored the legal conclusion of the pleader, if such did appear, which is neither evidence nor the-basis for competent evidence. Under no circumstances would the trial court have been justified in striking that portion of paragraph 2 of the answer of which appellant complains. It is true that the general rule relative to the declarations of a grantor, subsequent to conveyance disparaging the title of his grantee, are inadmissible, but there are well-established exceptions to that rule which entitle defendant to embody in his pleadings allegations upon which evidence falling within these exceptions might be predicated, and is, under the exceptions, admissible. The exceptions to the general rule relative to subsequent declarations of the grantor rendering them admissible are equally as well established as the rule itself, and are as follows: (1) Where the evidence first established a continuing conspiracy to defraud — 201 — between tbe grantor and the grantee. (2) Where the declarations are made in the presence of the grantee and not dissented from by him. (3) Where the grantor remains in possession after the transfer. 41 L. R. A. (N. S.) note, 21 et seq.; 12 R. C. L. 676, section 180. Evidence falling within the above exceptions is admitted upon the theory that snch declarations are a part of the res gestae. The case having been tried to the court without a jury, it was the province of the court to determine all questions of fact as well as of law, and to judge of the credibility of the witnesses. Therefore, if from the evidence adduced at the trial other than, and independent of, the subsequent declarations of the grantor, the trial court reasonably found the existence of a continuing conspiracy between the grantor and the grantee to defraud, or, if it reasonably found from such evidence the retention by the grantor of the possession of the property conveyed in contravention of the terms of the conveyance, or if the declarations were made in the presence of the grantee and not dissented from by her, the subsequent declarations of the grantee were properly admitted, otherwise the position of the appellant is well taken, unless the judgment of the trial court could be sustained from the other evidence in the case independent of such subsequent declarations. There is no evidence that the declarations complained of were made in the presence of the grantee, but we think the record discloses facts and circumstances sufficient to warrant the court in finding a conspiracy to defraud, independent of the subsequent declarations of the grantor, and, having made such finding, properly admitted such subsequent declarations. The prior declarations of a grantor are always admissible against him to show fraudulent intent at — 202 — the time of the conveyance, and the remoteness of the declaration goes only to the weight to be given to it in arriving at the existence or nonexistence of fraudulent intent of the grantor at the date of the conveyance and does not in anywise affect its admissibility as evidence. It is incumbent upon one who attacks the validity of a conveyance of this character as being in fraud of his creditors to prove by clear and satisfactory evidence that the conveyance so assailed is in reality void and fraudulent as to him. He is required to do this by direct proof of the fraud, or by proof of facts and circumstances from which the fraud might reasonably be inferred, and in this he assumes the burden of proof. Kingsbury v. Christy, 21 Ariz. 559, 192 Pac. 1114. But the proof necessary in a case of this kind is only proof sufficient to satisfy the mind or conscience, and produce a satisfactory conviction or belief in the mind of the court or jury. Harding v. Long, 103 N. C. 1, 14 Am. St. Rep. 775, 9 S. E. 445. "While there is a conflict of authority upon the question of the burden of proof in cases of this kind, the weight of authority seems to be that, where such creditor attacks the conveyance as in fraud of his rights, it is incumbent upon him to first show the fraudulent intent of the vendor, unless the conveyance was made under circumstances where proof of actual intent is not required, as under our statutes, chapter 131, section 4, Session Laws 1919, in case of insolvency of the grantor actual intent need not be proven. The intent having been shown, the burden ■then shifts to the purchaser to show a valuable consideration; that is, the duty then devolves upon the purchaser at some stage of the trial to show a valuable consideration for the purchase in order to meet the prima facie case made by such creditor by showing the fraudulent intent of the grantor. Valuable — 203 — consideration being shown, the burden is again upon the one attacking the conveyance to show the grantee’s knowledge of the fraudulent intent on the part of the grantor, and the grantee’s participation in the fraud. 10 R. C. L. 897, § 45; Hart v. Church, 126 Cal. 471, 77 Am. St. Rep. 195, 58 Pac. 910, 59 Pac. 296; Mason v. Perkins, 180 Mo. 702, 103 Am. St. Rep. 591, 79 S. W. 683, and numerous other authorities. The evidence clearly discloses: (1) That the conveyance was made by Mulford and wife to Mrs. Burke on March 9, 1920. (2) That upon said date Mulford was indebted both to appellee Glasscock and to the lumber company in Somerton. (3) That Mulford had no other property of any character in Arizona at the time. (4) That Mrs. Burke was his sister-in-law, and had lived in his home a great deal of the time during the six years immediately preceding the conveyance. (5) That the rentals of the property were paid to Alice Mulford, wife of W. L. Mulford, at least until November, 1920. (6) That the power of attorney given by Mrs. Burke to Mulford, dated January 7th, had placed upon it on June 21, 1920, an internal revenue stamp, duly canceled, and that the jurat of a notary public located in Los Angeles was placed upon such power of attorney on July 28, 1920, notwithstanding that Mrs. Burke testified that such power of attorney was to have been revoked in May, 1920. (7) That the deed of conveyance showed a consideration of $10 and bore a fifty cent canceled internal revenue stamp. The amount of Mulford’s indebtedness to Glass-cock upon the date of the conveyance cannot be definitely determined from the evidence, inasmuch as the judgment thereafter recovered is only conclusive of the amount of the indebtedness on the date of its rendition, but that Glasscock was a creditor of Mulford on the date of the conveyance there can be — 204 — no question, and being a creditor he was entitled to prosecute this action. While it may be true that an internal revenue stamp upon an instrument of this character has but little probative value as to the true consideration, we do think it is a circumstance, in this case corroborative of Mrs. Burke’s testimony to the effect that she paid Mulford $500 for said property, “and no more,” which, if true, is grossly disproportionate to its true value. In view of the hopelessly irreconcilable conflict in the testimony of appellant’s grantor, Mrs. Burke, with reference to the actual consideration paid by her for the property involved, as disclosed by her cross-examination, and the burden being upon her to show that she in truth paid a valuable consideration for such property, her failure to do so, or to even attempt a reconciliation of her testimony, relieved the appellee from producing1 further evidence tending to show her participation in the fraud. The above suspicious circumstances, together with many others not herein mentioned, are in fact badges of fraud overhanging the transaction, and the explanation thereof was exclusively within the power of appellant’s grantor. Her failure, therefore, to produce the testimony that, if believed, would relieve all uncertainty as to the true character of the transaction, requires the law to put an interpretation upon the same most unfavorable to her. Helms v. Green, 105 N. C. 251, 18 Am. St. Rep. 898, 11 S. E. 470. The trial court unquestionably inferred from these facts and circumstances a fraudulent intent upon the part of the grantor and a participation therein by the grantee. This court has uniformly held, where the findings and judgment of the lower court are based upon conflicting testimony, and there being substantial — 205 — evidence to support them, they will not he disturbed on appeal. De Mund Lumber Co. v. Stilwell, 8 Ariz. 1, 68 Pac. 543; Gila Land etc. Co. v. Eads, 23 Ariz. 282, 203 Pac. 549. And this is true, even though the Supreme Court might have come to a different conclusion upon reading the record. Leeker v. Leeker, 23 Ariz. 170, 202 Pac. 397. We are, however, of the opinion that the judgment of the trial court is amply supported by the evidence, and will therefore be affirmed. ROSS, and LYMAN, JJ., concur.