Adams v. Wingard

• Decision Date: 14 June 1909
• Citation: 53 Wash. 560,102 P. 426
• Parties: ADAMS v. WINGARD et al.
• Court: Washington Supreme Court

102 P. 426

53 Wash. 560

ADAMS v. WINGARD et al.

Supreme Court of Washington

June 14, 1909

Department 2. Appeal from Superior Court, Pierce County; W. O. Chapman Judge.

Action by Samuel Adams against L. J. Wingard and others. From a judgment for plaintiff for insufficient relief, he appeals. Reversed, with instructions to enter judgment in accordance with the prayer of the complaint.

A. H. Garretson and J. W. A. Nichols, for appellant.

Harry H. Johnston, for respondents.

DUNBAR J.

A judgment was obtained by the plaintiff against defendant L J. Wingard, who it was alleged had alienated the affections of the wife of the appellant and afterwards married her. The judgment was for $750. On the date of the commencement of said action, to wit, the 3d day of February, 1906, L. J Wingard deeded to his then wife, M. A. Wingard, formerly the wife of plaintiff in this case, a certain tract of land in King County. A judgment in that action was obtained October 26, 1906, and on October 4, 1906, Wingard and wife conveyed to defendant H. H. Brown certain property in Pierce County. This action was commenced October 25, 1907, to set aside both said conveyances as having been made in fraud of plaintiff and to have said property subjected to plaintiff's judgment for damages. The defendant L. J. Wingard defaulted. The other defendants, M. A. Wingard, the wife, and H. H. Brown, answered, admitting the transfer of the King county property to the wife, and that the only consideration was the alleged natural love and affection, and admitting the fraudulent transfer of the Pierce county property to said Brown, and joined with plaintiff in alleging said transfer to be without consideration and void, and asking that it be canceled. At the close of the trial the court ruled that the conveyance to Brown was fraudulent, and that the same be set aside, but refused to set aside the transfer of the King county property to the wife. Judgment was entered in accordance with said ruling, and from said judgment this appeal is taken.

As we have indicated, the defendant Wingard did not appear in this action, nor did he testify in the case. The only testimony on the subject of the transfer was that of the wife, M. A. Wingard, who testified that the consideration was love and affection, and that there was no collusion in the transaction. Conceding, without deciding, that love and affection are a sufficient consideration for the transfer of real estate as against existing creditors, our statute provides (section 3864, Pierce's Code [Ballinger's Ann. Codes & St. § 4580]) that in every case where any question arises as to the good faith of any transaction between husband and wife, whether a transaction between them directly or by intervention of third person or persons, the burden of proof shall be upon the party asserting the good faith. This burden of proof in this case in our opinion was not met by the respondents. The mere assertion on the part of the wife that there was no collusion is not sufficient especially when viewed in connection with all the circumstances of the case. The deed was made out upon the same day that the husband was called to account for alienating the affections of the appellant's wife, which is of itself a suspicious circumstance. In addition to this, just a few days prior to the entry of the judgment against him, the defendant fraudulently conveyed...