Brecheisen v. Clark

• Decision Date: 09 November 1918
• Docket Number: 21,535
• Citation: 176 P. 137,103 Kan. 662
• Parties: GEORGE BRECHEISEN, Jr., Appellant, v. G. W. CLARK et al. (MARY L. CLARK, Appellee)
• Court: Kansas Supreme Court

176 P. 137

103 Kan. 662

GEORGE BRECHEISEN, Jr., Appellant, v. G. W. CLARK et al. (MARY L. CLARK, Appellee)

No. 21,535

Supreme Court of Kansas

November 9, 1918

Decided July, 1918.

Appeal from Cherokee district court; JAMES N. DUNBAR, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. FINDINGS OF FACT--Conclusive on Appeal. Rule followed that a verdict and judgment supported by sufficient and competent testimony will not be disturbed on appeal merely because that testimony may have been somewhat shaken and discredited through the cross-examination of witnesses for the prevailing party.

2. SAME--Reward of Diligent Creditor. Rule followed that the law favors the diligent creditor.

3. FRAUDULENT CONVEYANCES--Debtor May Prefer Creditors. A debtor in failing circumstances may prefer one creditor to others and so long as that creditor receives such preferment in payment for a bona fide preexisting indebtedness, having given adequate consideration therefor, such creditor commits no fraud on other creditors; and it is immaterial that the satisfaction of her due may result in exhausting the debtor's assets to the prejudice of other creditors; and the motives of the debtor in preferring her to other creditors, although she may be aware of them, are immaterial so long as the creditor does nothing to create those motives and acts solely to obtain fair satisfaction of what is justly due her, following McDonald v. Gaunt, 30 Kan. 693, 2 P. 871; Kennedy v. Powell, 34 Kan. 22, 7 P. 606; Hasie v. Connor, 53 Kan. 713, 37 P. 128; Gilmore v. Swisher, 59 Kan. 172, 52 P. 426; Bank v. Schuette, 100 Kan. 45, 163 P. 1073.

4. SAME--Conveyance Through Third Party. A transfer of realty in this state may be made directly from spouse to spouse, but no peculiar significance attaches to an intermediate transfer of the property to a third party when the true purpose of the latter is sufficiently established.

5. TRIAL--Long Deliberation by Jury--No Error Shown. In the absence of unusual circumstances, no error arises from the fact that the jury were held to their task for forty hours before they reached a verdict.

Archie D. Neale, of Chetopa, and William P. Dillard, of Fort Scott, for the appellant.

Al. F. Williams, and F. W. Boss, both of Columbus, for the appellee.

OPINION

DAWSON, J.:

The plaintiff brought this action to recover possession of one hundred and twenty acres of land and to quiet his title thereto.

Sometime prior to this proceeding the plaintiff had commenced an action against the defendant, G. W. Clark, for a sum of money. At that time Clark owned the land in controversy. While that action was pending, Clark conveyed the land to his daughter for the nominal sum of $ 10, and she in turn conveyed it to her mother, Mary L. Clark, for $ 25. Plaintiff recovered judgment in his action for money against Clark, and caused an execution to be issued and levied against this land as the property of the defendant, and it was sold by the sheriff to plaintiff, and in due time the sheriff executed a deed conveying the property to plaintiff. Plaintiff then brought this action against Clark and his wife and other members of the Clark family alleging his ownership, and alleging that the conveyances from Clark to his daughter and from the daughter to Clark's wife, Mary L. Clark, were made for the purpose of hindering, delaying and defrauding the plaintiff as a creditor of Clark.

Mary L. Clark's answer, among other matters, alleged that she and her husband were married in 1884; that she had received certain moneys and property from her parents, and that such property had been sold and the proceeds and other moneys of hers had been invested and reinvested in lands in Iowa, which were eventually sold in 1902 for $ 7,650; that she had advanced to her husband $ 700 at one time and $ 3,000 at another time; that when her husband became involved in litigation with plaintiff she feared that the moneys she had given her husband might be lost, and had required her husband, for the purpose of protecting her, to convey the land to her; and that the transfers of the land to her daughter and from the daughter to her has been made in good faith and for her protection.

The defendant, Mary L. Clark, prevailed, and the plaintiff appeals, and in his brief he argues strongly against the credibility of the evidence adduced by defendant, and he points out the seeming weakness and inconsistencies in defendant's evidence and in that of her husband.

Turning, as this lawsuit did in the trial court, almost wholly on the determination of the facts in issue, it naturally provoked a spirited contest and furnished an unusual opportunity for counsel skilled in the art of cross-examination. And this opportunity was used with such cleverness and penetration that a reviewing court with nothing but the printed record before it might well doubt the correctness of the jury's verdict. But the principle is thoroughly settled that the determination of the issuable facts is no concern of an appellate court, provided there is sufficient evidence upon which the verdict and judgment can be based. (Bruington v. Wagoner, 100 Kan. 10, 164 P. 1057, id. 100 Kan. 439, 164 P. 1057; Wideman v. Faivre, 100 Kan. 102, 163 P. 619.)

Whether Mary L. Clark was a bona fide creditor of her husband for a preexisting indebtedness and was merely less indulgent and more diligent in looking out for her own interests as a creditor of her husband than other creditors, or whether she was merely acting a part to assist her husband in hindering, delaying and defrauding the plaintiff--these were jury questions which, upon competent and sufficient, though doubtful testimony, have been resolved in defendant's favor by the general verdict, and there is no essential conflict between the general verdict and the special findings of the jury. Counsel for plaintiff say that defendant's story about having advanced moneys to her husband years ago, and of which she kept no accurate account, "looks exceedingly fishy." It may do so, and yet we all know--some of us within our own experience--that wives frequently do that very thing, and it was for the jury and the trial court, not for appellate judges, to determine whether her claims were genuine or spurious, and notwithstanding the poor showing defendant made on cross-examination (Matassarin v. Street Railway Co., 100 Kan. 119, 120, 163 P. 796), she presented sufficient affirmative evidence to support her contention, and the controversy over the facts is closed. (Mitchell v. Simpson, 62 Kan. 343, 348, 349, 63 P. 440.)

Fault is found with the instructions given and with those refused by the trial court, but those given appear to have correctly defined the law applicable to the case and to have omitted nothing of any importance urged by plaintiff. The jury were clearly and simply advised that if the conveyance of the property by Clark to his wife, or from Clark to his daughter and from the latter to Clark's wife, was made through any understanding or agreement with the intention of Clark and his wife to hinder or delay or defraud the plaintiff, their verdict should be for the plaintiff. This feature of the instructions was elaborated and fully covered plaintiff's theory of the case. Of course, the court very properly gave instructions covering defendant's theory of the case, to the effect that a debtor in failing circumstances may prefer one bona fide creditor to the exclusion of others, and regardless of the debtor's motives, and even though the creditor may know that the debtor intends thereby to defraud other creditors. One such instruction continued--

"And you are instructed that the fact that such creditor is the wife of the debtor, does...