Cedar Rapids Nat. Bank v. Lavery

Decision Date07 February 1900
CourtIowa Supreme Court


Appeal from district court, Jones county; William G. Thompson, Judge.

Action in equity to set aside a conveyance of real estate as fraudulent, and to subject the land to the payment of a judgment. From a decree in plaintiff's favor, defendants appeal. Reversed.Welch & Welch, for appellants.

W. L. Chrissman and Ellison, Ercanbrack & Lawrence, for appellee.


The defendants are husband and wife. On July 26, 1896, the Aultman Company sold one John Lavery a threshing outfit, taking in part payment his three promissory notes, for $500 each, which notes were signed by defendant Mary Ann Lavery as surety. This action is founded on one of these notes, which was transferred to plaintiff, and upon which judgment was obtained January 5, 1897. At the time of signing the notes, and to secure the credit for her principal, Mary Ann Lavery made a property statement in writing, which showed, among other things, that she owned real estate in Jones county of the value of $9,000 over and above incumbrances. As a matter of fact, she did at the time own valuable real estate in said county, but on February 13, 1896, she conveyed this to her husband, Hugh Lavery. The present action is brought to set aside this conveyance. The insolvency of Mary Ann Lavery is not disputed. The only evidence tending to show fraud in the conveyance is found in certain admissions made by Mary Ann Lavery in an examination in proceedings supplemental to execution, which was had long after the conveyance was made. Aside from oral testimony as to these admissions, the written report of the referee before whom the examination was conducted was received over defendant's objection. This report does not appear to have been signed by the witness. We think it was inadmissible. But we go further, and say that all of these admissions and declarations of the wife were incompetent as against the husband. Such evidence is forbidden by section 4606 of the Code. Chapter 108, Acts 27th Gen. Assem., upon which plaintiff relies, was not passed until after this cause was disposed of by the trial court. It has no retroactive effect. Another and sufficient reason for ruling out this testimony is that, irrespective of the relationship of the parties, the rule is that the admissions or declarations of a grantor, after conveyance made, cannot be received to impeach the title of the grantee....

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