Cloud v. Malvin

• Decision Date: 07 April 1899
• Citation: 78 N.W. 791,108 Iowa 52
• Parties: CLOUD v. MALVIN ET AL.
• Court: Iowa Supreme Court

108 Iowa 52

78 N.W. 791

CLOUD

v.MALVIN ET AL.

Supreme Court of Iowa.

April 7, 1899.

On rehearing.

For former report, see 75 N. W. 645.

*791PER CURIAM.

A rehearing was granted in this case because of some doubt we entertained upon one legal proposition announced in the opinion. We found that the conveyance of the Marion 40 acres to Sarah Malvin in the year 1885 was in fraud of the creditors of W. H. & S. S. Malvin, who furnished the consideration therefor, and that the conveyance by the mother in June, 1892, of this same tract, was in fraud of plaintiff's rights. The point made on rehearing by appellants, and upon which our action in reopening the case was based, was that the creditors of a fraudulent grantee have no standing to complain of a reconveyance to the original grantor. We are met, however, by the objection on the part of appellee that no such issue as this was tendered on the original submission. This we find to be the case. On the first hearing, appellants rested this branch of their case solely on the claim that the conveyance to W. H. & S. S. Malvin was not fraudulent. They expressly conceded that, if the deed was fraudulent as to plaintiff, she could recover. *792We quote from the argument of appellants' counsel on the original submission: “If the mother transferred the property without consideration, and solely for the purpose of putting it beyond the reach of plaintiff's judgment, then it makes no difference whether there were defects in the proceedings upon which the sheriff's deed is based, or as to the time the quitclaim was made. The conveyances would then be set aside, not because of the defects in the origin of the deeds, or in the deeds themselves, but because the plaintiff had an equitable interest in the land at the time they were made, and the attempted conveyances were consequently fraudulent.” Under the circumstances, it is our duty to decline passing upon this question. We may well leave a consideration and comparison of the cases, which are in some conflict, until the issue is properly presented. We may say in this connection, without intending to announce a rule that shall be binding upon us hereafter, that the principle announced in the original opinion is not without support. See Susong v. Williams, 1 Heisk. 625; Chapin v. Pease, 10 Conn. 69; Allison v. Hagan, 12 Nev. 38. The original opinion is adhered to. Affirmed.