Metzger v. Burnett

[376] 1. Issuance of execution not necessary, when. Wells, J. The plaintiff in error contends that before an action to set aside a fraudulent conveyance can be instituted, an execution must issue and be levied upon the property sought to be reached. This is not the law. We think the correct rule is laid down in the American and English Encyclopaedia of Law, vol. 4, page 575, note 1 : “Where lands or chattels, of which the legal title was in the debtor, have been fraudulently conveyed, it is enough to have a judgment . . . because the application to chancery is to remove an obstruction which prevents a legal lien from operating upon the property.” The same principle is laid down in Dunham v. Cox (2 Stockton's Chancery [N. J.], 437), found in 64 American Decisions, page 460, where the court, by Williamson, Chancellor, says : “ When a creditor has by a judgment established his debt, by the statute he acquires a lien upon all the real estate of his debtor to satisfy his debt. If the debtor has fraudulently conveyed away or incumbered his real estate, so as to interpose an obstacle which embarrasses the debtor in appropriating it by legal process in satisfaction of his debt, then the creditor may file his bill to remove out of the way such fraudulent conveyance or incumbrance. It is not necessary for him to take out execution upon his judgment. The judgment constitutes a lien upon the land, and there is no necessity of compelling the creditor as a mere matter of form, to incur the further expense at law of issuing an execution.” 2. Attested journal entry competent, when. The plaintiff in error complains that the court erred in permitting an attested copy of the journal entry oí a -judgment rendered J jo in another county to be read in evidence, without proof that the original could not be produced. [377] We see no error in this. Greenleaf on Evidence, section 91,reads: “The rule rejecting secondary evidence is subject to some exceptions; grounded either on public convenience, or on the nature of the facts to be proved. Thus, the contents of any record of a judicial court, and of entries in any other public books or registers, may be proved by an examined copy. This exception extends to all records and entries of a public nature, in books required by law to be kept; and is admitted because of the inconvenience to the public which the removal of such documents might occasion, especially if they were wanted in two places at the same time ; and also, because of the public character of the facts they contain, and the consequent facility of the detection of any fraud or error in the copy.” 3. Seal wanting from execution, not considered. Complaint is also made that the trial court, over the objection of defendant, permitted the plaintiff to introduce in evidence a pretended execution which he had. caused to issue to the sheriff of Ottawa County, Kansas — the contention being raised in this court for the first time that no seal appears upon the copy contained in the record brought here for review. Under the authority of Dexter v. Cochran (17 Kan. 447) , we do not think this claim could be sustained, even if the issuance of an execution were necessary. We do not think this was error. 4. Book of entry not competent. Complaint is also made of the refusal of the court to admit in evidence a book containing an entry in relation to the debt in controversy, be-^ween ^he brothers, the only evidence in relation to which was the testimony of the party who produced it, which was substantially as follows : ‘ ‘ This memoranda was made at or about the time it bears date. That is the book that I had. My father gave me that book many years ago. I always [378] kept it. I made that entry in the- book. I made those entries after I lent my brother the money. I have no other accounts that I remember of. That is the only thing that I remember putting in it. The other entries are not mine. I am positive I made those entries at the time I made the loan.” 5. Witness in behalf of fraudulent grantor incompetent. Finally, the plaintiff in error claims the court below committed reversible error in excluding the deposition of Mrs. L. D. Metzger. This witness was Party to whom the deed claimed as fraudulent was given, and it is contended by the plaintiff m error that she was competent to testify on behalf of the defendant, not her husband. In the American and English Encyclopedia of Law, vol. 4, page 578, it is said : “It seems that, in suits brought against fraudulent alienees to avoid specific conveyances, the action is a proceeding in revi, and as the debtor cannot be prejudiced by a decree, he. need not be a party defentant.” If this is true, then no evidence on his part was necessary or admissible. We think the evidence in the case was sufficient to warrant the judgment rendered and that no reversible error appears upon the record. The judgment of the court will be affirmed.