Smead v. Rogers

Montgomery, J. This is a bill filed in aid of execution at law. Prior to the 23d day of January, 1893, Charles E. and Emma L. Rogers were owners, as tenants of the entirety, of an undivided half of the property in question, which consists of a canning plant and machinery in the village of Blissfield, under a conveyance of record. Albert S. Bush and wife were the owners of the other moiety. Mr. Rogers and Mr. Bush were engaged in the business of canning fruits and vegetables. On the date above stated, Bush and wife conveyed the undivided half of the premises to Roye M. Rogers, the son of Charles E. and Emma L., and they thereafter conducted the business. On the 7th day of January, 1897, the complainant commenced a suit by attachment against Charles E. and Roye M. Rogers, and caused the attachment to be levied [442] on the property in question on that day. On July 7, 1897, judgment was recovered in the sum of $2,255.56, and execution was afterwards duly taken out, and a levy duly made. In the meantime, on January 8th, the day following-the attachment, a deed from Charles E. and Roye M. Rogers to Emma L. Rogers, bearing date of November 30, 1894, was placed of record. This biil was filed to have it declared that this deed is fraudulent as to the complainant. The circuit judge granted the relief, and defendants appeal. Under the statute (Act No. 99, Pub. Acts 1897), the burden of proof rests with the defendant Emma L. Rogers to establish the bona fides of the transaction. The question for our decision is whether she has met this burden, and established the bona fides. The circuit judge had the advantage of seeing the witnesses and noting their appearance on the stand, and we should proceed reluctantly to reverse his decision on a question of this nature, although it is our duty to do so if fairly convinced of his error. A thorough examination of this record has failed to satisfy us that the conclusion of the circuit judge was not warranted. On the contrary, there are many circumstances which impress us as persuasive, and which tend to show a purpose to withhold this conveyance from record, with a full knowledge that the effect would be to give a false credit to the grantors. There is credible testimony that the title of Charles E. and Roye M. to this property was asserted by the defendant Roye M. in the presence of his mother, and not denied by her. There is a marked conflict in the testimony as to how the alleged consideration was paid. It is heyond doubt that the defendant Emma must have known that her husband and son were incurring indebtedness, and, in addition to this, the alleged consideration is grossly inadequate. The conclusion that there was a fraudulent purpose is, in our-opinion, justified. Ryan v. Meyer, 108 Mich. 638; Township of Maple Valley v. Foley, 113 Mich. 622; Preston Nat. Banh v. Pierson, 112 Mich. 435. The case is distinguishable from [443] Barkworth v. Palmer, 118 Mich. 50. In that case there was no proof of actual fraud. The decree does not by its terms subject.the undivided half of the property held by Mr. and Mrs. Rogers as tenants of the entirety to complainant’s execution, and in this respect it is entirely proper, as the conveyance was promptly placed of record when made, and long before complainant’s rights accrued. The decree is affirmed, with costs. The other Justices concurred.