Arnett v. Coffey

• Decision Date: 23 June 1891
• Citation: 1 Colo.App. 34,27 P. 614
• Parties: ARNETT et al. v. COFFEY.
• Court: Colorado Court of Appeals

27 P. 614

1 Colo.App. 34

ARNETT et al. v. COFFEY.

Court of Appeals of Colorado

June 23, 1891

Appeal from district court, Boulder county; SYLVESTER S. DOWNER Judge.

Action by Henry N. Coffey against Anthony Arnett and Mary G. Arnett to cancel an alleged fraudulent conveyance. Decree for plaintiff, and defendants appeal. Reversed.

In 1889, Henry N. Coffey brought this suit against Anthony Arnett and Mary G., his wife, to cancel sundry conveyances, which apparently vested the title to the described property in the wife. The bill set up that Coffey had obtained judgment against Arnett in the district court of Boulder county on September 14, 1888, for $680.80, and that prior to the rendition of judgment, and at the time when the indebtedness was incurred upon which judgment was rendered Anthony Arnett was the owner of certain real property. There was no other statement in the bill as to the date when the indebtedness accrued, or as to the circumstances under which it arose. The usual allegation of the issuance of a fi. fa and its return unsatisfied was in the bill. The plaintiff then averred "that he had been informed and believed and so on information andbelief charged the truth to be, that each, all, and every of the said above-mentioned conveyances, and every one of them, was and were not real, but was and were mere sham, and made with the intention of delaying and defrauding plaintiffs," etc. He charged that no consideration was paid by any of the grantees, who became the grantors of the wife, who likewise obtained title without paying anything for the property. The dates of the several transfers were given, from which it appeared that part of the property was conveyed to one Jones in July, 1877, and that the conveyance from Arnett to Woodworth, and the conveyances by them to their grantees, and thence to Mrs. Arnett, were executed and delivered at various dates between that time and December, 1877. These various deeds and their dates were admitted, though the answer specifically denied the allegation of fraud and want of consideration, and, in the usual form adopted in answers in equity, made affirmative allegation that the conveyances were made in good faith and for a valuable consideration. To avoid the statute of limitations with reference to bills for relief on the ground of fraud the following allegation was made: "That he first learned and became possessed of the information that the said various conveyances hereinbefore charged and set forth were and are fraudulent within the three months last passed, and that he first learned and became possessed of the knowledge of the facts constituting the aforesaid fraudulent transactions of the said defendant Anthony Arnett in the aforesaid conveyances during the month of November, 1888." No other allegation on the subject appears in the bill. Issue was taken upon this averment, but upon the trial no proof was offered upon the subject. At the trial the only evidence offered as to the time when the indebtedness put into judgment in 1888 was incurred was the pleadings in that suit. That was a suit of Coffey against Arnett alone. The complaint in that case stated that in 1873 Coffey and others were interested with Mr. Arnett in the "Big Thing" lode, and that, in order to facilitate the procurement of the government title to the property, he and his co-owners deeded to Arnett, with the stipulation that Arnett should procure the patent and then redeed to the parties their respective interests. It averred the procurement of the patent in 1875, and the subsequent sale, in 1883, of the particular property to Jones and Yankee for $5,000, and sought to recover the one-twelfth of the money paid by them therefor. It is needless to state the defenses set up further than to say that issue was taken upon all the averments, and that the proceedings resulted in the judgment which is the basis of this bill. On the trial of the present case evidence was introduced tending to show that the transfers from Mr. Arnett to Jones, and from him to Sweet, and from Sweet and Woodworth to Mrs. Arnett, were without consideration, and that they were made for the purpose of avoiding the liability supposed to exist against Mr. Arnett upon an official bond. The evidence offered by the plaintiff demonstrated that Woodworth paid a consideration for the title which he took, though the amount of it was not proven. A demurrer was originally interposed to the bill upon various grounds, and, among others, that it did not state facts sufficient to constitute a cause of action. It was overruled, and this order was followed by the answer. The decree vacated the various conveyances from Arnett to Jones and Arnett to Woodworth, set aside the various deeds whereby Mrs. Arnett acquired title, and directed that the entire property should be subjected to the payment of Coffey's judgment.

William E. Beck and O.A.F. Greene, for appellants.

George S. Adams, for appellee.

BISSELL J., (after stating the facts.)

It is universally agreed that as against existing creditors a debtor may not make a voluntary conveyance. To bring the case within this well-recognized principle it must be shown by both allegation and proof that the debt to which the property is said to be subject existed at the time of the conveyance unless there be present an intention to defraud creditors whose rights are shortly expected to arise, and whose rights may thereafter supervene. Wilcoxen v. Morgan, 2 Colo. 473; Sexton v. Wheaton, 8 Wheat. 229; Jackson v. Jackson, 91 U.S. 122. As against Anthony Arnett it is tolerably clear that Coffey's claim did exist prior to the time of the several conveyances which he made. While no evidence whatever was offered upon that subject, other than what may be drawn from the record of the case of Coffey v. Arnett, as against him this seems to be ample for the purpose. In that suit an issue was fairly tendered as to the time and manner in which Arnett acquired the title to Coffey's one-twelfth interest in the lode. From the verdict in ...