Cloud v. Malvin

• Decision Date: 24 May 1898
• Citation: 108 Iowa 52,75 N.W. 645
• Parties: CLOUD v. MALVIN ET AL.
• Court: Iowa Supreme Court

108 Iowa 52

75 N.W. 645

CLOUD

v.MALVIN ET AL.

Supreme Court of Iowa.

May 24, 1898.

Appeal from district court, Delaware county; J. J. Tolerton, Judge.

Creditors' bill to subject certain lands, the title to which is in W. H. Malvin and S. S. Malvin, to the payment of a judgment held by plaintiff against Sarah Malvin. The trial court subjected certain of the lands, and denied relief as to the remainder, and both parties appeal. As the defendants first perfected their appeal, they will be called the appellants. A statement of the issues will be found in the opinion. Modified.Dunham & Norris and W. H. Utt, for appellants.

Yoran & Arnold, for appellee.

DEEMER, C. J.

Samuel Malvin, Sr., died intestate January 19, 1872, seised of 220 acres of land, and possessed of personal property to the amount of about $15,000. His widow, Sarah, and his son Philip S. were appointed administrators of the estate. The son undertook the active management of the property, and squandered nearly all the personal assets in speculation upon the board of trade. In February of 1878 he absconded, and has never since been heard from. Shortly after his departure, various creditors brought suit against him, as well as against other heirs of the deceased, and the remaining property of the estate was levied on under writs of attachment. While these suits were pending, and on or about July 16, 1878, the heirs--11 in number--met, and made a voluntary partition of the property. By the terms of this agreement, the widow was to receive 60 acres of the land, in full of her distributive share, and was to assume the payment of $573.23 of a mortgage upon the land allotted to her; Marion Malvin, a son, was to receive 40 acres, and pay $1,196.34 of the mortgage, and also $126.56 to some of the other heirs; William H. and Samuel Malvin, also sons, were to jointly receive 40 acres of land, and pay $286 to other heirs; Belle Malvin and Jane Cloud, daughters, were to jointly receive 40 acres, and pay $165.82; Elizabeth Carpenter, a daughter, was to take a town lot, and pay $283; and Charles Malvin and Ann Skinner, son and daughter, were to jointly receive 40 acres, and pay $314. The other heirs were not to receive any of the real estate. At the time of this partition the mortgage to which we have referred, and which will hereafter be called the “Carpenter Mortgage,” was being foreclosed; and, as it covered the lands assigned to the widow and to Marion C. Malvin, provision was made for its payment as above indicated. Payment was not made, however, and the land covered by the mortgage was sold under execution upon a judgment obtained in the foreclosure proceedings. In 1886 the widow made a report as administratrix to the county court of Delaware county, in which she stated that her son Philip had squandered the estate, that she was not liable therefor, and that all the heirs, save and except the plaintiff and appellee, who is her daughter, had released her from liability. This report does not appear to have been approved. Plaintiff did not agree to the release of her mother, but, on the contrary, brought suit against her for maladministration, and on June 10, 1892, recovered the judgment which lies at the foundation of this suit. In the year 1885 W. H. and S. S. Malvin made conveyance of the land allotted to them to their mother. This conveyance was evidently made with intent to defraud creditors. And at a later date, but during the same year, Marion C. Malvin conveyed to his mother the land received by him. The expressed consideration for this deed was $1,100. It was paid by the brothers W. H. and S. S. Malvin, and the title was placed in the mother for the purpose of defrauding creditors. In the foreclosure proceedings of which we have spoken, the presiding judge made a memorandum in his docket on or about June 1, 1878, directing the foreclosure of mortgage; but no decree was in fact entered until the trial of this case in the court below, when one was ordered nunc pro tunc. An execution issued, however. in May of the year 1888, and the land was sold, as before stated. After the sale, W. H. Malvin, one of the sons, procured an assignment of the sheriff's certificate, which ripened into a deed on the 10th day of July, 1889. In July of the year 1888, Sarah Malvin executed a will, in which she devised certain of the lands allotted to her to her sons, and at the same time made deeds to 20 acres of the land to her son W. H. Malvin, and 20 acres to her son S. S. Malvin; this being the same land that they conveyed to her in the year 1885. On the 10th day of June, 1892, and shortly before plaintiff obtained judgment against her mother, there were filed for record three deeds from Sarah Malvin, the widow, conveying--First, 20 acres of land to S. S. Malvin; second, 20 acres to W. H. Malvin (these being the deeds that were executed in the year 1888); and, third, a deed to the same and other lands, describing all of which the intestate died seised, to W. H. Malvin, the consideration being stated as $2,000. This action is brought to subject the lands allotted to the widow, and the 40 acres deeded to her by Marion Malvin, to the payment of plaintiff's judgment. It is alleged in the petition that these last-named conveyances were made to hinder, delay, and defraud the plaintiff in the collection of her judgment. The trial court set aside the sheriff's deed, and also declared the conveyance from Sarah Malvin to W. H. Malvin, which was recorded June 10, 1892, fraudulent and void. It also found that certain of the land theretofore in the name of the widow was a homestead, and exempt from the lien of plaintiff's judgment. The defendants appeal from that part of the judgment setting aside the conveyances, and subjecting the property to the payment of plaintiff's claim; and the plaintiff, from that part of the decree allowing the homestead exemption.

There is no controversy over the facts heretofore stated. The pleadings tender an issue as to the validity of the sheriff's deed, and of the conveyance to W. H. Malvin recorded June 10, 1892. It may be conceded at the outset that the sheriff's deed is of no validity, because of various and substantial defects in the proceedings, but this does not of itself entitle the plaintiff to the relief demanded. With this out of the way, the title still remains in W. H. Malvin, under the deed executed...