Churchill & Alden Co. v. Ramsey
| Decision Date | 05 June 1922 |
| Docket Number | 4847. |
| Citation | 188 N.W. 742,45 S.D. 454 |
| Parties | CHURCHILL & ALDEN CO. v. RAMSEY et al. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Minnehaha County; John T. Medin, Judge.
Suit by the Churchill & Alden Company against W. H. Ramsey and another. From judgment for defendants, plaintiff appeals. Reversed.
A. J Keith and M. G. Luddy, both of Sioux Falls (Kirby, Kirby & Kirby, of Sioux Falls, of counsel), for appellant.
H. B Ramsey and A. H. Lossow, both of Minneapolis, Minn., for respondent W. H. Ramsey.
Davis Lyon & Bradford, of Sioux Falls, for respondent Ella B. Ramsey.
This case was here on a former appeal and is reported in 42 S.D. 23, 172 N.W. 779. On the first trial, findings and judgment were in favor of the plaintiff, but we reversed that judgment because of the incompetency of the evidence by which the allegations of fraud contained in the complaint were proved. The case went back for retrial. The complaint was amended so as to change the issues to some extent, and the incompetent evidence that was used on the first trial was supplied by competent evidence of the same facts on the second trial. However, the trial court reached a conclusion on the second trial, opposite from the conclusion reached on the first. Findings of fact and judgment were for defendants, and plaintiff appeals.
In addition to the facts stated in the report on the former appeal, it appears from the evidence taken at the second trial that, during the year 1912, defendant W. H. Ramsey owned a quarter section of land in Kidder county, N. D.; also a quarter section of land in Bayfield county, Wis. On the 27th day of June, 1912, he conveyed the Wisconsin land to his wife and on the 19th day of August, 1912, he conveyed the North Dakota land to her. The consideration for each of these conveyances, as was expressed in the respective deeds, was $1. The property involved in this case, known as the Ramsey Block, was conveyed to Ella B. Ramsey on the 12th day of July, 1912. At this time W. H. Ramsey was indebted to plaintiff in a considerable sum of money, and plaintiff was pressing Ramsey for payment. On the 20th day of September, 1913, an attachment was levied on said Ramsey Block in an action by plaintiff against W. H. Ramsey. On the 1st day of March, 1915, judgment was entered in that action in favor of plaintiff in the sum of $7,065.33. On the 6th day of May, 1915, Ella B. Ramsey by deed conveyed away the North Dakota property for the expressed consideration of $1,800, and on the 10th day of May, 1915, she conveyed away the Wisconsin land for the expressed consideration of $1,400.
It was shown by the testimony of Ella B. Ramsey that, when the Ramsey Block was conveyed to her that it was her understanding that she was to take that and wipe out the $3,400 that had been received by her husband when the home was sold in 1907, but that she was not present when the deed was executed; that she did not have the deed recorded nor pay the recording fee; that she did not know who drew the deed; that her husband attended to all matters connected with the transaction; and that she never saw the deed. The situation was the same in regard to the disposition of the home property, except that she herself executed the deed. No part of the consideration was paid to her, or by her to her husband, it was paid directly to her husband and by him used in his business. He never gave her a note for it or any promise to return it to her or agreed to pay her any interest for the use of it.
After she had given her testimony on the trial and been cross-examined, the court took a recess. After such recess she went back upon the stand and, on redirect examination, referring to the deed conveying the Ramsey Block to her, testified that she knew there was such a deed; that it was executed at her request; that it was sent to Sioux Falls for record at her request; that her husband was attending to all her business affairs at that time. Then upon further cross-examination she testified:
"Since we had a recess a few minutes ago I talked with my attorney, and it was in that conversation that this matter was placed in my mind, in which I testified that the deed was sent for record at my request."
The defendant, W. H. Ramsey, was present at the trial; he could have explained all these transactions, were they susceptible of explanation, but his codefendant did not call him to the stand, and the plaintiff could not call him to testify against his wife.
The trial court found, as a fact, that the deed conveying the Ramsey Block was delivered to Ella B. Ramsey, that, at the time of such delivery, W. H. Ramsey was indebted to her in the sum of $3,400, that the property described in such deed was conveyed to her in payment of such indebtedness, and that said deed was not given or received by her with intent to hinder, delay, or defraud the creditors of the grantor.
The evidence does not sustain these findings. In the first place the evidence such as it is, does not show that the deed ever was delivered to Ella B. Ramsey. She admitted she had never seen it and knew absolutely nothing whatever about its execution or recording until after she had left the witness stand and consulted with her counsel and had the matter placed in her mind by him, nor does the evidence sustain the finding that W. H. Ramsey was indebted to Ella B. Ramsey in the sum of $3,400 at the time the deed was executed. He does not appear to have been in debt to any one when he conveyed the homestead to his wife in 1896. He had a right to convey it to her if he so desired, and there is no question that she became the owner of the legal title to the homestead by virtue of such conveyance. But, when it was sold in 1907, the proceeds were paid directly to him and by him used in his shoe business. He does not appear to have asked his wife's permission to use it, he did not give her his note for it nor agree to pay her interest, nor even to pay it back at any time in the future. The most she claims is that it was understood between them that he would use an equal amount of money to provide another home for themselves at some future date. But that is not sufficient to entitle her to take that amount of money from his creditors at a time when, to her knowledge, he has become heavily in debt and his creditors were pressing him for payment. But, conceding that W. H Ramsey did...
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