Williams v. Clark
| Decision Date | 28 July 1891 |
| Citation | 47 Minn. 53,49 N.W. 398 |
| Parties | WILLIAMS v CLARK. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
(Syllabus by the Court.)
1. A conveyance of real estate by an insolvent debtor which, standing alone, would be void as a preference under our insolvent law, is not thus avoided if it be made pursuant to a prior valid and enforceable contract legally obligating the debtor to make the conveyance.
2. In an action to avoid such a conveyance, held, that a prior contract for conveyance was admissible as evidence in defense.
3. The opinion of a witness as to whether a written instrument had been executed at a recent or remote time, when based only on the appearance of the instrument, is incompetent.
Appeal from district court, Aitkin county; G. W. HOLLAND, Judge.
Action by George T. Williams, as receiver, against Frank W. Clark, to avoid a conveyance of certain land. Judgment for plaintiff. Defendant appeals. Reversed.
E. Hammons, for appellant.
Hollemback & Wood, for respondent.
In January, 1889, in proceedings under our insolvent law, the plaintiff was appointed receiver of the property of George W. Clark, an insolvent debtor. He prosecutes this action to avoid a conveyance of certain real estate made by the insolvent by deed to the defendant, Frank W. Clark, December 24, 1888. The only facts alleged as the ground for the relief sought are that the conveyance was made in payment of a pre-existing indebtedness of the grantor to the grantee, evidenced by promissory notes theretofore given, the grantor being insolvent, and the grantee having reasonable cause to believe that such was the case, so that by force of the insolvent law the conveyance constituted an unlawful preference. It is to be taken as a conceded fact that the consideration for the conveyance was a past indebtedness from the grantor to the grantee. Such a conveyance, made within four months prior to the insolvency proceedings, was subject to be avoided by force of the insolvent law if made for the purpose and under the conditions specified in the law. But the defendants alleged that this conveyance was executed in pursuance of a prior contract for the sale of the land, executed in July, 1888; and at the trial they offered in evidence such a contract, acknowledged on the 18th day of July, by the terms of which, for the expressed consideration of $4,800, the payment of $3,500 of which was acknowledged, the owner became obligated to convey the premises in question, as he did do in December following, by the deed now sought to be avoided. This contract was not recorded, and, objection being made for that reason...
To continue reading
Request your trial