LeSell v. Mendenhall

Gaynor, J. Plaintiff brings this action in equity to subject certain real estate to tbe payment of a judgment claimed to bave been obtained by ber against tbe defendant Jessie Clements, alleging that conveyances were made without consideration, and for tbe purpose of hindering, delaying, and defrauding ber in tbe collection of ber judgment. Tbe petition alleges that, during tbe May term (no year given), this plaintiff obtained judgment for $250 and costs, against Jessie Clements,. in a case numbered 22935 Law; that an execution was issued on tbe judgment, and tbe execution returned unsatisfied; that, soon after tbe bringing of tbe aforesaid case, sbe commenced another case against Jessie Clements, known as No. 21635 Law, wherein sbe asked judgment for damages. Sbe alleges that tbe conveyances complained of were made for tbe purpose of defrauding ber of ber rights, and were without consideration. All tbe defendants appeared and filed answer, denying tbe allegations of plaintiff’s petition. On tbe trial of tbe case, tbe plaintiff introduced in evidence the pleadings and files in No. 21635 Law, together with tbe stipulation entered into between tbe parties on June 10, 1913. Neither tbe files nor tbe stipulation appear in this abstract, nor are they before us. Sbe also introduced [982] in evidence the files in No. 22935 Law, in which it appears a judgment was entered in her favor against the defendant Jessie Clements, for $250'. These files do not appear in the abstract, and are not before us. In an amendment to the abstract, it is shown that the petition in the case No. 22935 Law was filed on the 28th day of August, 1913, and judgment entered June 19, 1916. The deeds,, which it is claimed were made in fraud of plaintiff’s rights, are not set out in the record, but we are informed that they were executed and acknowledged on the 7th day of June, 1913, and recorded on the 13th of September, 1913. The record does not disclose what became of the suit No. 21635, nor does it appear that any judgment was ever entered in that suit, nor that Jessie Clements was in any way indebted to the plaintiff on account of the matters therein set out. There were, however, stipulations made in this suit, but whether acted upon or not does not affirmatively appear. Judgment was entered in No. 22935, but it does not affirmatively appear upon what this judgment was based. It seems to have been the result of a compromise of some sort. If we had the pleadings before us in this ease, the stipulation of the parties, and the record, we might find some basis supporting plaintiff’s contention. But in the absence of any record, we have no way of knowing whether there was, in fact, any indebtedness existing at the time these conveyances complained of were made. The most we have in the way of data is that the petition in No. 22935 Law, in which the judgment was entered, wqs filed on the 28th day of August, 1913. It is not before us, nor have we any way of knowing when the cause of action arose, upon which the claim in that petition was based, because there is nothing in the record^ showing this. We have simply the commencement of the action and the entering of the judgment, both of which were subsequent to the conveyances. [983] 1. Fraudulent CONVEYANCES: creditor’s action to set aside: presumptions : creditor at time of conveyance. Appeal and eeroe : presumptions : equity causes. Ladd, C. J., Preston and Stevens, JJ., concur. [982] The claim of the plaintiff is that Jessie Clements con [983] veyed this property for the purpose of hindering, delaying, and defrauding her creditors. The burden of proof is on the plaintiff to show these facts. There is no presumption of fraud. It must affirmatively appear that plaintiff was a creditor of Jessie Clements’ at the time the conveyances were made. A conveyance cannot be said to be in fraud of the rights of one who has no claim against the party alleged to have perpetrated the fraud, at the time the act was done upon which the fraud was predicated. A conveyance cannot be said to be in fraud of the rights of one who is not shown to have a claim against the grantor or his property at the time the conveyance is made. The judgment was not entered until long after the conveyance was made. Whether the stipulations referred to dispose of No. 21635, and merge all rights into the judgment finally entered in No. 2293-5, does not affirmatively appear. The records introduced in evidence might throw light on this, but they are not before us. They were, however, before the district court at the time the judgment was entered. The presumptions are in favor of the court’s holding. To entitle us to interfere with the judgment of the court, the facts showing error must appear in the record before us. They do not so appear, and the judgment of the court is, therefore, — Affirmed.