Smith v. Utesch

Rotheock, J. I. There is no question as to the validity of the judgment held by the plaintiff against 1. Fraudulent conveyances: husband and wife: agency: evidence. August TJtesch. The indebtedness upon which it is founded was contracted in the 7ear 1876. The land m controversy is a tract of [one hundred and sixty acres. It was purchased by August TJtesch of one Hamlin, October 11,1883. The contract price was two thousand dollars ; one hundred dollars was paid in cash, four hundred dollars was to be paid October 25, 1883, and five hundred dollars January 25, 1884. These deferred payments drew interest at the rate of eight per cent, per annum. These payments were made, and on the twenty-eighth day of January, 1884, Hamlin conveyed the land to August TJtesch, subject to a mortgage of one thousand dollars thereon, which TJtesch agreed to pay. On the eighth day of December, 1885, August TJtesch conveyed the land to Minnie TJtesch, subject to the said mortgage of one thousand dollars. The claim of the plaintiff is that the land was at all times owned "by August. TJtesch, and that the conveyance was made to his wife to prevent the collection of the plaintiff’s judgment. The defendants claim that the land was purchased with the money of the wife, and that the mortgage which was assumed as part of the purchase money has been since paid with her money. There was a large number of witnesses examined on the hearing. ’We do not purpose to set out the testimony of the witnesses in detail. The following facts are shown by the evidence without conflict, or are so clearly proven that they may be accepted as true: The defendants are natives of G-ermany. August TJtesch came to this country in the year 1871, and worked as a farm laborer near Sterling, Illinois; for a time, and returned to Germany and married Minnie Peterson and returned to Sterling with her in April, 1873. The defendants went to housekeeping, and the [384] husband worked at farm work by the month for a time. Then they leased a farm and cultivated it as tenants. In 1876 August Utesch bought a farm of erne Fahey. He worked the farm for two years, and, being ^ unable to pay for it, he gave it up, and in 1878 he removed to Benton county, in this state, and rented a' farm of one Smith for one year. Then he leased a farm of one Gremning, and farmed it until 1885, when he removed to Plymouth county, having before his removal bought the land in controversy. When he removed to Plymouth county the land in controversy was wild, uncultivated prairie. He rented land from other parties and cultivated it until his own land was improved. During all this time, and up to the time of the conveyance of the land in controversy to Minnie Utesch, all of the renting of farms, payment of money, sale of stock, in short, all the business for the family, was transacted by August Utesch and in his name. This is a strong circumstance tending to show that the business carried on was that of the husband, and not that of the wife. It is true this evidence is not conclusive, and it is claimed in behalf of the appellant that it should have no weight in this case, because the husband and wife testified that all the business was in fact her business, and that her husband was her mere agent. It is true that there are many cases where the husband acts as the mere agent of his wife in the purchase and sale of property, and no agency is disclosed, and the public suppose that the husband is the principal. But the business, as shown in this case, involves more than the ordinary business done by a husband in disposing of produce and stock raised on the farm of his wife. It involves the purchase of two farms, and the renting of several others, and all done in the name of the husband. There is a large amount of evidence on the question as to how much money each of the defendants had when they started in life together. This evidence is [385] really no aid to a determination of the rights of the parties. The amounts were small, and the defendants do not really claim that the land in controversy was purchased with the money which the wife had at her marriage. They claim that the one thousand dollars which was first paid on the land was money which the wife received as a present from her father. The claim is that the identical money which she received from her father was paid for the land; and both of the defendants and John Peterson, the father of the defendant, Minnie Utesch, testified as witnesses that the gift of one thousand dollars was made a few days before August Utesch went to Plymouth county and bought the land in controversy; and the defendants both testified that August Utesch took one hundred dollars of the amount to Plymouth county and paid it on the purchase, and that the nine hundred dollars was kept by the wife until it was sent to Plymouth county, and paid on the purchase of the land. The plaintiff claims that no gift of one thousand dollars-was made, and our conclusion is that the preponderance of the evidence sustains the claim of the plaintiff. We are satisfied from the evidence that John Peterson did not have one thousand dollars to present to his daughter. We cannot set out the evidence showing this to be the fact. It would unduly extend this opinion to do so.' It consists of a history of his financial condition from the time of his arrival in this country from. Germany, about the year 1880. There are other considerations which, in our judgment, are, to say the least, inconsistent with the claim of a gift of one thousand dollars. One is that nine hundred dollars of the amount should have been kept in the possession of the wife for several months, and not paid on the purchase, while the deferred payments were drawing interest. Another is that August Utesch sent a letter to the agent through [386] whom the land was purchased, requesting an extension of time of payment, because one of his neighbors could not raise the money, and he would like to oblige his neighbor. Then there is the fact that the land was conveyed to August Utesch. It is true he and his wife both claim that this was a mistake. But the evidence shows quite satisfactorily that he did not convey the land to his wife uptil after he knew that the claim was made that he was liable upon the notes on which the plaintiff’s judgment was founded. II. Counsel for the appellants contend that, as the plaintiff called and examined August Utesch and John 2. Evidence: witnesses: impeachment. Peterson as witnesses, he thereby “impliedly declared that they are credible persons, and worthy of belief, and he - cannot now be heard to say that their testimony herein is untruthful. ” Whatever merit there maybe in the rule contended for by the appellants, it can have no application in this ease, so far as it involves the one material fact upon which the case turns. We refer to the claim made that John Peterson made a gift'of one thousand dollars to the defendant, Minnie Utesch. The testimony of said witnesses as to that transaction was drawn out on cross-examination by the defendants’ counsel, and the plaintiff is not precluded from showing that the fact is.otherwise. A party calling a witness is not permitted to impeach him generally. The rule as stated in sections 442, 443, 1 Greenleaf on Evidence, isas, follows: “When a party offers a witness in proof of his cause, he thereby in general represents him as worthy of belief. He is presumed to know the character of the witnesses he adduces; and, having thus presented them to the court, the law will not permit the party afterwards to impeach their general reputation for truth, or impugn their credibility by general evidence tending to ■ show them to be unworthy of belief; for this would enable him to destroy the witness [387] if be spoke against Mm, and to make him a good witness if he spoke for him, with the means in his hand of destroying his credit if he spoke against him. But to this general rule there are some exceptions; for where the witness is not one of the party’s own selection, hut is one whom the law obliges him to call, such as the subscribing witness to a deed or a will or the like, here he can hardly be considered as the witness of the party calling him, and, therefore, as it seems, Ms character for truth may be generally impeached. But, however this may be, it is exceedingly clear that the party calling a witness is not precluded from proving the truth of any particular fact, by any other competent testimony in direct contradiction to what such witness may have testified; and this is not only where it appears that the witness was innocently mistaken, but even where the evidence may collaterally have the •effect of showing that he was generally unworthy of belief.” We do not think that it is necessary to further ■elaborate the case. The question is, should the land in •controversy be subjected to the payment of the plaintiff’s judgment?' The case turn's upon the evidence, and a careful consideration of the whole record, leads us to the conclusion that the decree of the district court .should be affiemed.