Lovell v. Denison

Bird, J. This proceeding was instituted under the garnishee law to determine whether the garnishee defendant had money or property in his possession belonging to the principal defendant. It was so adjudged by a jury, and judgment was accordingly rendered against him. By writ of error, the case has been brought to this court for review. Upon the death of her mother in February, 1908, Genevieve McCormick, the principal defendant, became the owner of her estate. The estate consisted of personal property of the value of nearly $1,500, and real estate appraised at $6,500. The debts owing by the estate amounted to about $4,000. Mrs. McCormick had no way of paying the claims against the estate, and, after consulting with relatives, made a proposition to the garnishee defendant that if he would pay the claims against the estate, she would convey the real estate to him. Denison later accepted her proposition, and the same was conveyed to him on the 29th day of April, 1908; but he did not place the deeds of record until July 29, 1908. Between the 1st day of May and the date on which the deeds were recorded, Mrs. McCormick became indebted to the plaintiff for wearing apparel. She neglected to make payment therefor, and in February, 1909, a judgment was rendered against her for $213.96, and costs of suit. This judgment was subsequently reduced, by an execution levy and sale, to $197.85. Garnishee proceedings were instituted against the defendant Denison. He answered that he had no money or property in his possession belonging to her. Interrogatories were subsequently filed and answered. Then a demand for trial was filed to test the truth of [601] his disclosures, and it resulted in a judgment against him for the amount of plaintiff’s claim. It was the claim of plaintiff that he extended credit to Mrs. McCormick on her apparent ownership of the estate and on her representations that the estate was solvent: these facts, together with the further facts that the transfer was unknown to him, and was withheld from record until after the credit had been extended, operated as a fraud in law upon him. On the other hand, it was contended by defendant that he purchased the real estate in good faith, paying nearly full value for it during the financial depression of 1907-08, and that the goods for which plaintiff now seeks to recover were purchased after the transfer to defendant, thereby making plaintiff a subsequent creditor, and as such he could not recover, without showing actual intent to fraud.' The trial court eliminated the question of intent to defraud, and charged the jury that if plaintiff extended credit to Mrs. McCormick on her apparent ownership of the estate they might render a judgment against the garnishee defendant for the amount of plaintiff’s claim, provided they further found that the ’ value of the property transferred to him was sufficient to cover both what he had paid on the indebtedness Of the estate and plaintiff’s claim. The defendant requested the court to instruct the jury that at the time the transfer was made by Mrs. McCormick to Denison she must have intended to injure, delay, and defraud creditors. We think no recovery could be had, unless she did so intend. If the plaintiff had been an existing creditor, the law would have presumed the intent ; but this is not the rule as to a subsequent creditor. In the case of a subsequent creditor, there must be proof of an actual intent to defraud some particular creditor, or creditors generally. This distinction is very clearly set forth by Mr. Justice Grant, in Cole v. Brown, 114 Mich. 396 (72 N. W. 247, 68 Am. St. Rep. 491), where it is said: [602] “While no fraudulent intent is necessary to set aside voluntary conveyances as to existing creditors, it must be established in order to set them aside as to subsequent creditors. In other words, actual fraud must be shown, and as well the specific intent to defraud the individual subsequent creditor complaining, or subsequent creditors generally. Wait, Fraud. Conv. §§ 96, 202; Simmons v. Ingram, 60 Miss. 898; Florence Sewing Machine Co. v. Zeigler, 58 Ala. 224. In the case of Howe v. Ward, 4 Greenl. [Me.] 195, an exhaustive examination of this subject was made, and many authorities cited and discussed. The conclusion reached in that case is thus stated; “ ‘If the party for whose benefit the proof is introduced was not a creditor at the time the alleged fraudulent conveyance was made, such proof cannot avail him, unless found sufficient to convince the jury that the conveyance was made for the purpose of defrauding him in particular, or subsequent creditors generally, as well as those who were creditors at the time, if there were any such.’” The question was again before the court in Barkworth v. Palmer, 118 Mich. 50 (76 N. W. 151), a case wherein the facts were much like those in the present case. The case of Cole v. Brown was followed; the court saying, among other things, that— “ In order for the complainants to recover in this case, they should have shown that, at the time when these deeds were made, there was an express design on the part of the defendants to subsequently obtain credit from the complainants, and defraud them.” We are of the opinion that the trial court was in error in refusing to charge as requested, and that he was also in error in submitting the case to the jury upon the theory which he did. For these reasons, the case will be reversed and a new trial ordered. B£<air, J., concurred with Bird, J.