Commercial State Bank of Salem v. Kendall

• Decision Date: 10 January 1906
• Citation: 106 N.W. 53,20 S.D. 314
• Parties: COMMERCIAL STATE BANK OF SALEM v. KENDALL et al.
• Court: South Dakota Supreme Court

20 S.D. 314

106 N.W. 53

COMMERCIAL STATE BANK OF SALEM

v.KENDALL et al.

Supreme Court of South Dakota.

Jan. 10, 1906.

Appeal from Circuit Court, McCook County.

Action by the Commercial State Bank of Salem against Ponsonby Kendall and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.Hosmer H. Keith and W. R. Holly, for appellant. A. C. Biernatzki, for respondents.

FULLER, P. J.

This appeal from a judgment for defendants in an action to set aside a warranty deed of the homestead from a husband to his wife, on the ground that such conveyance was made to defraud plaintiff, a creditor of the grantor, and the material facts established by the evidence, and found by the trial court, may be briefly stated as follows: In the year 1898 the premises in question, consisting of a house and two lots in the city of Salem, now worth $1,600, were purchased by the defendant Ponsonby Kendall, and had been continuously occupied as the homestead of himself and family for more than five years prior to January 18, 1904, when he conveyed the same to his wife. Mary M. Kendall, for the purpose of vestingin her an absolute fee-simple title, and without any intention to defraud his creditors.

In view of the undisputed evidence plainly showing that the transfer of this homestead to the wife was not colorable, nor for the purpose of enabling the husband to withhold the same from his creditors in case of future abandonment, such conveyance was not rendered fraudulent by the fact that he soon afterwards left his wife and children in the occupancy of the premises, and went to a remote county to engage in the practice of his profession, and, after filing on a government homestead, was joined by his family several months later. The facts disclosed by this record fall far short of bringing the case within the doctrine announced in Kettleschlager v. Ferrick, 12 S. D. 455, 81 N. W. 889, 76 Am. St. Rep. 623, where an action was pending against the grantor when he executed a deed to his wife pursuant to a confessedly secret agreement between the parties thereto that she was to hold the naked legal title for his exclusive benefit, so that they might defeat the claims of all existing and subsequent creditors after the premises had ceased to be impressed with the homestead character. According to the intention of both parties to that transaction, the property abandoned as a homestead still belonged to Ferrick, notwithstanding the subterfuge, and in recognition of the axiom that creditors are never injured by the transfer of...