Carlisle v. Milliman
| Decision Date | 07 April 1925 |
| Docket Number | 36546 |
| Citation | 203 N.W. 268,199 Iowa 949 |
| Parties | LEOTO T. CARLISLE, Appellee, v. W. B. MILLIMAN, Sheriff, et al., Appellants |
| Court | Iowa Supreme Court |
Appeal from Harrison District Court.--O. D. WHEELER, Judge.
ACTION to enjoin a sheriff's sale. Plaintiff was permitted to prevail, and defendant appeals.
Affirmed.
Stipe Davidson & Davidson and Robertson & Havens, for appellants.
C. W Kellogg, for appellee.
I.
The plaintiff and her husband, W. M. Carlisle, purchased and made their homestead a town property in Missouri Valley, Iowa, which they occupied until the year 1920, when the same was sold. Title to the homestead was originally taken in plaintiff herein, and so continued until the time of sale. The money derived from the sale of said homestead was deposited in one of the banks in Missouri Valley in the name of the plaintiff herein. The husband, W. M. Carlisle, obtained from said bank, at two different times, sums totaling $ 5,750, which he sent to Des Moines to a son-in-law for investment, and which was eventually lost in speculation in some one of the late inflation deals. Later, another lot was purchased, and a house built as a residence for the Carlisles. Part of the money derived from the original homestead was used in the construction of the house on the new lot. The transaction of the selling of the original homestead was handled by the husband, W. M. Carlisle, and he deposited the money to his wife's credit in the bank. This case largely hinges on this transaction.
It is the claim of the plaintiff herein that she loaned the $ 5,750 to her husband with the understanding that it was to be repaid to her when they were ready to build the new house. Carlisle himself was dead at the time of the trial below, so we have not his testimony. Her testimony is undenied that the matter was talked over between them, and that she loaned this money to her husband with the understanding that it was to be repaid to her, as above stated. She was examined in auxiliary proceedings sometime prior to the commencement of this action, and it is claimed that there is such conflict in her testimony in the present case and that given on the former examination that she should not be treated as a credible witness. The evidence, however, shows that she was unfamiliar with business ways and business usages, and that her husband usually transacted her business for her, after having talked it over with her.
We do not feel, from the record made in this case, that the disparities, whatever they may be, between the testimony in this case and the testimony given on former examinations, are such that they should be treated as discrediting her testimony. Her testimony, therefore, stands unimpeached, that the $ 5,750 was a loan to her husband, and that the same was understood between them to be repaid to her for the purpose of constructing the new house on the lot which was already in her name.
W. M. Carlisle, during the large part of their married life, was engaged in the hardware business in Missouri Valley. He was the owner of a five-sixths interest in a brick business block in said town. Seven years previous to the commencement of this action, Carlisle and another had become indebted to Fairbanks, Morse & Company to the amount of approximately $ 4,000. This claim had been sued in Page County, and went to judgment in September, 1922.
In July, 1922, W. M. Carlisle, being unable to repay to his wife the said $ 5,750, although requested by her to do so, deeded to her his five-sixths interest in the business property to which reference has been made. She says that, at the time this deed was made to her, while she formerly knew of this indebtedness to Fairbanks, Morse & Company, she understood that it had been settled, or the case dismissed. She says that her husband delivered to her the deed, and that she turned it back to him for the purpose of having the same recorded. It is not shown to have been recorded until after the levy of the execution by Fairbanks, Morse & Company on the business property thus deeded to her. Her testimony in this respect is undisputed, and must be taken as true.
After the levy of said execution under the Page County judgment, by the sheriff herein, plaintiff brought this action to enjoin a sale under said judgment, and to quiet title as against the same. The evidence fairly shows that the business property thus deeded to the wife was worth in the neighborhood of from $ 5,500 to $ 6,000. The Page County judgment, costs, interest, and accrued costs amount to about $ 5,000.
It is the thought of the defendants that this conveyance of the business property to the plaintiff herein was done with intent to defraud creditors of said W. M. Carlisle, it being all the property he owned, it being deeded after the Page County suit was commenced, and before the same was tried. The evidence, however, does not show that W. M. Carlisle had any creditors other than Fairbanks, Morse & Company.
If we give the defendants the full measure of their contention in this case, at the time Mrs. Carlisle took this deed she knew that her husband was in financial distress. Even though she did know that this property was being deeded to her...
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