Weir v. Day

Rothrock, J. Krrr¡TErcE. trim de novo. I. A question is made as to whether the action is triable anew in this court. It is said that the evidence was not taken down in writing. The record shows at the testimony of some of the vitnesess was taken by deposition. At the trial the testimony of other witnesses was taken by a short-hand reporter, and the evidence was transcribed by him, and filed in the cause. The transcript of the evidence was filed before the canse was submitted to the judge for his decision, and was taken by him with the written arguments of counsel and the cause was decided in vacation. The judge made his certificate to the evidence in proper form and in due time. This was a sufficient compliance with the statute to entitle an appellant to a trial de novo in this court. Lent conveyanee: g autor ana grantee. II. If the plaintiff caused the conveyances to be made to the defendant with intent to hinder, delay or defraud his creditors, or any ol thorn, he is not entitled to recover. Holliday v. Holliday, 10 Iowa, 200; 1 Story Eq. Jur., 61; Kerr on Frauds and Mistake, 375; Stephens v. Harrow, 26 Iowa, 458. The evidence abundantly shows that such was his intention. Before the conveyance to Mathews an action had been commenced against the plaintiff by one Mary Herron to recover damages in the sura of $2,000 for the unlawful sale of intoxicating liquors. Afterwards she recovered judgment for damages and cost amounting to $400. On the day before the conveyance to Mathew, one McMillan had commenced an action of the same character, against the defendant, claiming $5,000. No recovery was had on the action. There were three indictments pending against the plaintiff, for keeping a gambling-house and a nuisanee. Upon these the defendant was afterwards convicted, and fined in the [87] sum of $600. There was another action pending against him in which judgment was afterwards rendered for over $200, and costs. Five witneses testified upon the trial in substance, that the plaintiff stated to them that he made the conveyance to avoid and defeat the claims made against him, for the unlawful sale of intoxicating liquors. It appears that the court below, was of the opinion that as it was not shown that Day had knowledge of the fraudulent intent of the plaintiff, the conveyance was not fraudulent; that a fraudulent purpose on the part of the grantor alone is not sufficient; that there must be a like intent or at least a knowledge of the fraudulent intent traced to the grantee. This is undoubtedly the rule where creditors seek to set aside a conveyance as fraudulent. But the ground upon which a fraudulent grantor is precluded from gainsaying the transaction, is that he comes into a court of justice with unclean hands and seeking to take advantage of his own wrong. In Holliday v. Holliday, supra, the plaintiff purchased real estate, paid for it, and took the title in the name of his wife. After her death he sought to compel the children of the wile to convey to him. It appeared that he procured the conveyance to be made to his wife to place the property beyond the reach of legal process, if he should be prosecuted upon a certain demand which he regarded as unjust. It does not appear that thé wife participated in or had any knowledge of the fraudulent intent of her husband. 3' ' °r' But it is said that the claims which the plaintiff sought to defeat by the transaction, were not the claims of creditors within the meaning of the law. Whatever may be said as to the indictments, it appears to be settled beyond controversy that a person having a claim for a tort is a creditor. See Hillard v. McGee, 4 Bibb., 165; Jackson v. Myers, 10 Johns., 425; Farnsworth v. Bell, 5 Sneed., 531; Lary Ford v. Fly, 7 Humph., 585; Walradt v. Brown, 1 Gilman, 397. If the intent was in part to evade fines upon criminal prosecution, [88] and also to evade the payment of any judgment which might thereafter be obtained in the civil actions, the conveyance was wholly fraudulent, It cannot be upheld in part, and avoided in part. In our opinion the plaintiff's petition should have been dismissed at his costs. Beversed.