Clark v. Raymond

• Decision Date: 22 January 1892
• Citation: 84 Iowa 251,50 N.W. 1068
• Parties: CLARK v. RAYMOND ET AL.
• Court: Iowa Supreme Court

84 Iowa 251

50 N.W. 1068

CLARK

v.RAYMOND ET AL.

Supreme Court of Iowa.

Jan. 22, 1892.

Appeal from district court, Harrison county; GEORGE W. WAKEFIELD, Judge.

This is an appeal by the defendants from an order of the district court appointing a receiver to take possession of certain lands, and to rent the same, and collect the rents and profits arising therefrom, and retain the same until the further order of the court.S. H. Cochrane, for appellants.

J. W. Barnhart and H. H. Roadifer, for appellee.

ROTHROCK, J.

1. The application for the appointment of a receiver was in the form of a petition, and the matter was submitted to the court upon affidavits and counter-affidavits. It appears from the record that the defendant J. M. Raymond held the fee-title to about 1,200 acres of land in Harrison county, and that he was largely indebted to divers persons. This indebtedness aggregated about $50,000, the greater part of which was secured by mortgages upon said land to about the value of the land. He had no other property with which to pay his debts, excepting certain farming utensils and live-stock. On the 31st day of March, 1890, said defendant made a quit-claim deed of said land to his son, the defendant L. H. Raymond, who afterwards conveyed an undivided one-half of the same to his sister Rebecca Raymond. The effect of these conveyances was to put the legal title to the land in the said L. H. Raymond and Rebecca Raymond. It does not appear that actions of foreclosure of said mortgages had been commenced, as against said J. M. Raymond and the land. The plaintiff herein is the holder of an unsecured promissory note executed by said J. M. Raymond, and the amount due thereon is something more than $5,000. After the land was conveyed by J. M. Raymond, as aforesaid, and on the 8th day of April, 1890, the plaintiff herein commenced an action on said note, and caused all of said land to be attached as the property of J. M. Raymond, and also caused the said L. R. Raymond, Rebecca Raymond, and other persons, who were occupants and lessees of said land, to be garnished in the action. This application for the appointment of a receiver was made within a few days thereafter. The claim made by the plaintiff is that the rents and profits of the said land are of the value of $2,000 per annum; that the conveyance thereof by J. M. Raymond to his said son, and the conveyance to Rebecca Raymond, were fraudulent. An issue was made as to the fraudulent character of these conveyances, and the affidavits in the case were confined to that issue. The petition in the case not only demands that a receiver be appointed, but it is in the nature of a creditors' bill, and demands that, when plaintiff obtains judgment in his action at law upon the note, the said land, and the rents, issues, and profits thereof, be subjected to the payment of said judgment. It appears that before this proceeding was commenced the garnishees had answered denying that they were indebted to J. M. Raymond, or had property in their hands belonging to him, and the plaintiff had taken issue on the answers of the garnishees, and the action at law and the issue on the garnishment proceedings stood for trial at the August term, 1890, of the district court. It is averred in the application for a receiver that all of the defendants, including the garnishees, are insolvent. The question, and the only question to be determined, is whether the plaintiff had the right to have a receiver appointed to oust the grantees of J. M. Raymond from the premises, and to cause the tenants to attorn to the receiver, and to authorize the receiver to rent and manage the land pending further litigation. It may be that, if there was no resistance to such proceeding, a court ought to sustain the application. But the defendants resisted it by answer and by affidavits, which, to say the least, tended to show that the conveyance of the land to J. M. Raymond was not fraudulent. It is to be remembered that these affidavits were not taken and submitted to the court to determine the question of fraud, but for the purpose of enabling the court to determine whether it was a proper case for the appointment of a...