Tootle & Maule v. Dunn

Maxwell, J On the first day of February, 1875, an attachment was levied on the south-east quarter of the northwest quarter, and the east half and the south-west quarter of the south-west quarter of section one, in township three north, of range seven east of the sixth principal meridian, in an action pending in the district court of Saline county, wherein Tootle & Maulé were plaintiffs, and Peter Dunn was defendant.' In November of that year, the plaintiffs in that suit re [98] covered judgment against the defendant, Dunn, for the sum of $1,138.43. On the second day of March, 1875, another attachment was levied on the above described tracts of land in an action pending in the district court of Saline county, wherein Whitney, Bauserman & Co. were plaintiffs, and Peter Dunn was defendant. At the November term, 1875, of said court, the plaintiffs in said action recovered a judgment' against Dunn for the sum of $634.07. On the twenty-first day of January, 1875, Dunn conveyed the above described premises by warranty deed to Thomas Moore, one of the defendants, for an alleged consideration of $800, which deed was duly recorded on the twenty-seventh day of January, 1875. In November, 1875, the plaintiffs caused executions to be issued on their judgments, which executions were by the sheriff endorsed “ no goods.” The sheriff then levied the executions on the lands in question. This action* was brought to set aside the deed from Dunn to Moore for the lands in controversy. It being alleged that said deed was made without consideration, and with the intent and for the purpose, as the said Thomas Moore then well knew, of delaying, hindering, and defrauding the said plaintiffs in the collection and amount of their claims. Judgment was rendered in the court below in favor of the plaintiffs, to reverse which, the defendant, Moore, brings the case into this court by appeal. Section seventeen, chapter twenty-five, General Statutes, 395, provides that: “Every conveyance or assignment, in writing or otherwise, of any estate or interest in lands; or in goods or things in action, or of any rents or profits issuing therefrom, and every charge upon lands, goods, or things in action, or upon the rents and profits thereof, made with the intent to hinder, delay, [99] or defraud creditors or persons of their lawful rights, damages, forfeitures, debts, or demands; and every bond or other evidence of debt given, suit commenced, or decree or judgment suffered, with the like intent, as against the persons so hindered, delayed, or defrauded, shall be void.” Section twenty-one provides that: “The provisions of this chapter shall not be construed in any manner to affect or impair the title of a purchaser for a' valuable consideration, unless it shall appear that such purchaser had previous notice of the fraudulent intent of his immediate grantor, or of the fraud rendering void the title of such grantor.” These sections of our statutes appear to have been copied substantially from 13'Eliz., O. 5, to prevent fraudulent conveyances, n In Twyne’s case, 3 Coke, 80, P. was indebted to T. in the sum of £400, and he was also indebted to C. in the sum of £200. O. commenced an action against P. for the recovery of the amount due him; P. thereupon made a secret assignment to T. of all his goods and chattels without exception, in satisfaction of the debt, but continued in possession thereof, and sold a portion of the sheep and put his mark on others. The court held that this was a fraudulent gift within the statute — 13 Eliz., C. 5—although P. was actually indebted to T. in the sum of £400, and that a good consideration is not sufficient to take the case out of the statute, unless the deed be made tona fide also. An intent to hinder, delay, or defraud creditors may be inferred from the grantors being insolvent at the time the conveyance is made, or from the fact, that he is indebted in so large an amount that the conveyance necessarily will have that effect. But the question of fraudulent intent under our statute is one of fact and not of law. Bona fide purchasers, however, for a valuable [100] consideration without notice are protected, whether purchasing from the fraudulent grantor or grantee. In this case Moore swears positively that he paid $800 in cash for the land, and that he did not know that Dunn was in embarrassed circumstances, and unable to pay his debts. No witnesses were called to testify as to the value of the land in question. The appraisers in the attachments estimate its value at $1,200, but their estimates are entirely expcurte, and we know nothing of their qualifications as experts. It is impossible, therefore, for us to say that the price paid by Moore for the land is so disproportionate to its value as to raise a presumption of fraud. Fraud is never presumed, but must be proved, and the degree of proof necessary to establish it is the same in equity as at law. But from the nature of the case, it can not usually be established by direct testimony, and must therefore ordinarily be shown by circumstances. But where it is found that a vendee has participated in the fraud of a vendor, by accepting from him a conveyance of real estate, with the intent to hinder, delay, or defraud creditors of such vendor, such conveyance will be void as to those creditors, even though a full adequate consideration may have been paid for the property so conveyed. Wright v. Brandis, 1 Ind., 336. Ruffing v. Tilton, 12 Id., 260. Chapel v. Clapp, 29 Iowa, 194. Story’s Eq., sec. 369. Twyne’s case, 3 Coke, 81. But the testimony in this case fails to establish the fact, that Moore purchased the land in question with knowledge that would lead him to believe that Dunn intended by such conveyance to hinder, delay, or defraud his creditors. The judgment of the district court fis reversed, and the cause dismissed. Judgment accordingly.