Hickey v. Davidson

McClain, C. J. 1. Appeal:'delay amended abmentVmotion to strike. In a motion submitted with the case appellants ask that appellees’ amendment to the abstract and a considerable portion of the reply by appellees to appellants’ argument be stricken from the files, because the amended abstract was filed a long time after the filing of appellants’ argument (appellees hayj-Qg the opening and closing in this case) and the reply is in the main part a reargument. In an ordinary case we should be inclined to sustain this motion, but the facts of this case are peculiar. After the filing of the abstract and arguments the submission of the case was postponed until another case, involving the interest of plaintiff Wm. P. Hickey, Jr., in this same tract of land, should be decided by this court. After the decision in the other case [386] was rendered the appellees conceived it to be to their interest to present the record more fully by way of amendment to the abstract, and to more fully argue the questions which had been involved in the other case, and the amendment to the abstract and the reply argument were thereupon filed in ample time to enable the appellants to file further argument, did they -deem it advisable. As the record is at best somewhat obscure, and, even with the amendment, is quite brief, we have desired to avail ourselves of every assistance in understanding it, and have reached the conclusion that the motion to strike should be overruled. s. Estates of saieof heirs’ “anceSints": evidence. One John Hickey died intestate in March, 1901, owning one farm of 252 acres, which will hereafter be designated as the “ Home Farm,” another farm of 120 acres, constituting the tract of land to which the present case relates, two town lots, and some grain, live stock, implements, and household furniture. J-Je ajg0 ^ ^ ^me Qf yg a note for $7,500, signed by the firm of Hickey & Kane and by the individual members of the firm, one of whom was his son Wm. P. Hickey, secured by chattel mortgage on a stock of goods which had belonged to the firm. So far as the record discloses this constituted his entire property. lie left surviving him as heirs five children, John. Hickey, one of the plaintiffs, Wm. P. Hickey, already referred to, and three daughters. Soon after the death of their father, the three daughters joined in a conveyance of the 120-acre tract of land to their brother John Hickey and their nephew Wm. P. Hickey, Jr., son of Wm. P. Hickey above referred to; and thereafter the plaintiffs in this case, the grantees in the conveyance from the three daughters, brought this action to enjoin the defendants from selling a one-fifth interest in this tract as the property of the judgment debtor. Counsel agree that the whole case depends on the solution of the question whether Wm. P. Hickey, Sr., had any beneficial interest in his father’s’estate which can be subjected to the payment of [387] the judgment under which defendants claim the right to seize an interest in this property. There is no dispute between counsel as to the law applicable to the case, nor is there any direct conflict in the evidence as to any material fact, but the difficulty in reaching a conclusion arises from uncertainty, as appears from the conflicting claims of counsel, with regard to inferences or deductions to be drawn from the testimony of the witnesses, all of whom were examined in plaintiffs’ interest. It is conceded that Wm. P. Hickey, as heir, appears to be the owner of a one-fifth interest in the tract of land to which this controversy relates, and that the plaintiffs’ appear to hold the title to only four-fifths of the tract as against creditors of Wm. P. It is clear, then, that the burden is on the plaintiffs to overcome the presumption of ownership of a one-fifth interest by Wm. P. Hickey, in order to entitle them to relief as against the defendants. This burden plaintiffs have attempted to sustain by evidence which, as their counsel claim, establishes the fact that prior, to the death of John Hickey his son Wm. P. Hickey was indebted to him to an amount in excess of the share to which Wm. P. would become entitled as heir on the death of his father intestate, and that under these circumstances they entered into an arrangement by which the indebtedness of.Wm. P. to his father was treated as an advancement and canceled, and’ all claims of Wm. P. to share in his father’s estate were surrendered and extinguished. The question before us to decide is whether there was such an arrangement, for, if such a valid arrangement was made, then on the death of John Hickey all his property, not including the claim against his son Wm. P., which was extinguished by the arrangement, vested in his other four children and nothing remained subject to be taken by defendants under the judgment against Wm. P., and whatever apparent interest Wm. P. had in the 120-acre tract of land as heir was apparent only and not real, having been extin [388] guishecl, as above indicated, by the settlement between him and his father. So far as it is necessary to determine the fact in this case, the alleged indebtedness of Win. P. to his father consisted of money loaned by father to son, and invested by the latter in the partnership business of Hickey & Kane, and was evidenced by the $1,500 note secured by chattel mortgage above mentioned. Counsel argue that the indebtedness of Wm. P. to his father was greater than this at the time it was converted into an advancement, but it is sufficient for present purposes to consider this one item, as to which there is no dispute. On the other hand, it is con-' ceded that at the time of the arrangement between Wm. P. and his father there was $1,800 interest accrued and unpaid on this $1,500 note, so that, if there was such an arrangement, the indebtedness which was converted into an advancement was at least $9,300. Some claim is made in argument that no interest accrues on money given by way of advancement; but there is not the slightest evidence that the money furnished Wm. P. or the firm of Hickey & Ka,ne was considered on either hand as given by way of advancement to Wm. P. until the arrangement referred to was made. The indebetdness was evidenced by a note secured by mortgage, interest was provided for, and there was every characteristic of a loan. There is no controversy between counsel as to the proposition- that an indebtedness may, by mutual agreement, be converted into an advancement. The only question is as to the sufficiency of the evidence to show such an arrangement between Wm. P. and his father in this case. But there can be no doubt under this record as to the sufficiency of the evidence on this point. Wm. P. testified to the fact and it is shown by one of his daughters and another witness that just before such arrangement was made, as testified to by Wm. P, the father had caused the daughter to write a letter to Wm. P. in response to' one asking for more money, in which it was specifically stated that Wm. P. had already [389] received more than His share, and no further money would be furnished to him. The letter, as testified to, did not in itself contain a definite statement that the father would treat the indebtedness already existing as an advancement, but it did indicate a feeling on his part toward his son Wm. P. with reference to the indebtedness which would tend to corroborate the testimony of Wm. P. as to the conversation between him .and his father which he says soon afterward took place. Hnless we are justified in absolutely disbelieving and dis- • regarding the testimony of unimpeached witnesses, we are not warranted in saying that there is not sufficient evidence to show the conversion of the indebtedness into an advancement. What was subsequently done by the parties in interest indicates their understanding- that such an arrangement was made. Soon after the death of the father, and without further conferance with his brother and sisters, Wm. P. executed to his sisters a conveyance of his interest in the 252-acre farm which included the homestead, joining for the purpose, as we understand the record, in a deed which also conveyed the interest of his brother John; and in connection with the execution of this conveyance the $7,500 note, which was in the hands'of one of the daughters, was surrendered. No attempt appears to have been made by his brother and sisters, as the other heirs and jointly interested in the personal property, to enforce this obligation against Wm. P. or to treat him as in any way a debtor to the estate. It also appears that Wm. P. joined with his brother John, in transferring to his sisters without further consideration all their interest in the personal property. The entire record can be consistently explained (in the absence of an inference of fraudulent collusion, to which matter, we shall presently refer) on the theory that all the heirs per- , fectly well understood that Wm. P. had no further interest in his father’s estate. [390] 3. fraudulent conveyances: evidence. [389] As bearing on the credibility of the testimony of Wm. P, [390] that there was an arrangement between him and his father by which his indebtedness was converted into an advancement, we may properly consider the value of the estate as compared with the acknowledged indebtedness of Wm. P. to his father. Without going into details, we have reached the conclusion, on reading the evidence, that it appears without reasonable doubt that the total value of the estate, real and personal, not including the indebtedness of Wm. P. to his father, was at the time of his decease $33,650. Adding to this the amount of the indebtedness of Wm. P. to his father to find the total value of the estate in which Wm. P. would have been entitled to participate (subject to the offset against his interest of his indebtedness), we have the total value of the estate ■$42,950. The share of Wm. P. as heir would therefore have been, had no arrangement been made to convert this indebtedness into an advancement, $8,590. The share of Wm. P., therefore, was clearly less than his indebtedness, and yet not so different from it in amount as to render the action of the father in canceling it and converting it into an advancement unreasonable. Were there no claims of creditors against Wm. P., there would be no grounds for questioning the reasonableness of the testimony of Wm. P. as to the arrangement between him and his father. P., and the subsequent acts of his sisters in conveying an interest in the 120-acre tract to the infant son . . . . of their brother, taken together, show a general fraudulent purpose on the part of all of them to put the property of Wm. P. beyond the reach of his creditors. We concede that courts should be astute to discover fraud, and should strenuously endeavor to prevent the success of a dishonest effort to so manipulate the title to property that creditors shall be deprived of just satisfaction of their claims; but we do not conceive it to be within the province of a court of equity to infer a fraud from acts which are equally consistent with good faith, nor disregard the testimony of unimpeached and uncontradicted witnesses. It was not un [391] reasonable, nor on the face of it, necessarily fraudulent, for the sisters of Win. P, to provide for his infant son in view of the fact that he had lost all his property in an unfortunate business speculation. Even if they saw fit out of their abundance to make some' provision for this brother, and to make that provision by giving property to his infant child, which would therefore be beyond the reach of his creditors, the creditors cannot complain. Counsel dwell upon the fact that no explanation has been made in the record as to why the sisters conveyed an interest in this 120-acre tract to the son of Wm. P. instead of to him. But, as we look at the case, such explanation was uncalled for. If Wm. P. still had a real interest, as he had an apparent interest in this 120-acre tract, the conveyance would simply pass to his son the additional interest held by the daughters therein; and the question to be determined by the court was, not the intention of the daughters, but the subsisting interest, if any, of Wm. P. Had his sisters conveyed their interest directly to Wm. P., it would simply have invested him with their interest in addition to his own, and they would thereby have been giving him their own property to be taken by his creditors in satisfaction of his debts. There was certainly no badge of fraud in a transaction by which they vested their own interest in his son instead of in himself. Some claim is made in argument that there was after the death of the father a practical partition of the property among the brothers and sisters, in pursuance of which, and for the purpose of defrauding the creditors of Wm. P., the share of the latter was conveyed to his son instead of to himself. But there is no evidence of any arrangement for partition, and what was done was not consistent with any such arrangement. The value of the one-half interest in the 120-acre tract, which the sisters purported to convey to their brother’s son, did not correspond to his interest in the estate, disregarding his indebtedness or advancement, nor to his in [392] terest in excess of such indebtedness or advancement. The surmise as to the attempted partition is wholly inconsistent with all the evidence as to the acts of the parties and the value of the property. We therefore reach the conclusion that Wm. P. Hickey had no interest in the 120-acre tract of land which the defendents sought to reach under execution, and that the decree of the trial court quieting the title of the plaintiffs, and enjoining the defendents from levying upon any interest in the property under the judgment against him, was correct; and it is affirmed.