Tobey v. Tobey

McGrath, C. J. Complainant is the wife of Archer R. Tobey, and defendant Samuel H.' is father of Archer R. This bill is filed to compel the husband to make proper and suitable provisions for the support of the wife and her infant child, and joins Samuel H., alleging that certain fraudulent conveyances have been made by the husband to his father in fraud of1 complainant’s rights. The court below gave a decree for complainant, from which Samuel H. and complainant appeal. Upon a careful examination of the record, we are entirely satisfied that the evidence justified the conclusions arrived at by the court below upon the merits. The parties were married May 21, 1890; and on May 24, 1890, Samuel H. conveyed to Archer R. 80 acres of land,' valued at $4,000. On October 29, 1890, complainant was induced to join with her husband in a deed bf this land back to Samuel Ii. No consideration passed from father to son for this conveyance, but complainant alleges that ■-she was induced to join in the conveyance by representations made that the purpose was to purchase other land, •or use the avails in mercantile business. Afterwards, on ■October 31, 1891, 40 acres of land, of the value of about '$2,000, was purchased in the husband’s name; and complainant and 'her husband went into possession of the land -so purchased, and occupied it as a homestead until the •time of the final separation, January 27, 1892. Samuel ,H. furnished the major portion of the money with which this purchase was made, except that the land was bought subject to a mortgage of $600. The evidence tends to show that Samuel H. was to take up this mortgage. After the separation of the parties, and on February 3, the husband gave a mortgage upon this 40 acres to his lather, for $1,000, and it is 'alleged that this mortgage [57] was given to secure the moneys advanced by Samuel H. with which to make the purchase. Samuel H. afterwards sold the 80 acres of land first referred to, and procured the assignment to himself of the mortgage of $600, and commenced proceedings to foreclose both mortgages. The decree directed the husband to pay to complainant a specific sum each year, in half-yearly installments, and makes the decree a lien upon the 40 acres of land, giving it priority over the mortgages held by Samuel H. It is insisted that Act No. 243, Laws of 1889, does not authorize the creation of the lien. But the second section of the act empowers the court to grant an injunction restraining the sale of the property, and provides that notice of such injunction filed with the register of deeds shall operate as an attachment of the property, and that, to enforce its decree, execution may issue, and be levied upon such real estate. How. Stat. § 6293, expressly provides that the payment of the sum fixed by the court may be secured upon real estate. Act No. 149, Laws of 1885, and Act No. 90, Laws of 1887, amended How. Stat. § 6291. Act No. 243, Laws of 1889, repeals Acts No. 90 and 149 aforesaid, and “all acts and parts of acts inconsistent herewith.” Section 6293 is not expressly, repealed, and the exercise of the authority thereby conferred is not inconsistent with the exercise of the power conferred by Act No. 243, Laws of 1889. It is next urged that the decree is not supported by the allegations in the bill. The bill alleges that the conveyance of the 80 acres was made to defraud complainant, but alleges simply the ownership of the 40 acres, and its occupation as a homestead, and does not contain any allegation as to the circumstances connected with its purchase, or refer to the existence of the mortgages in question. The bill is therefore defective. But it may be amended. It is evident from this record that the 80 acres of land [58] was conveyed to Samuel H. without consideration; that it was not intended as a gift from son to father; and that, when the 40 was purchased, it was the understanding that it was to be paid for by the father, in consideration in part of the conveyance to him of the 80 acres. The decree will be set aside, the record remanded, the complainant be permitted to amend, and the decree re-entered. Eespecting the amount decreed to complainant, the testimony bearing upon that subject is meager, and the court below was in a much -better position to determine that question than we are. No costs will be allowed to either party. Grant, Montgomery, and Hooker, JJ., concurred. Long, J., did not sit.