Coons v. Lemieu
| Decision Date | 05 July 1894 |
| Docket Number | 8636 |
| Citation | 59 N.W. 977,58 Minn. 99 |
| Parties | Leroy Coons v. John Lemieu, et al |
| Court | Minnesota Supreme Court |
Submitted on briefs May 28, 1894
Appeal by defendants, John Lemieu, Dosite Brouillette, and others from a judgment of the District Court of St. Louis County Charles L. Lewis, J., entered December 4, 1893, annulling certain conveyances of real estate as fraudulent as against plaintiff, Leroy Coons, a judgment creditor, and declaring his judgment a lien upon the property.
On March 23, 1891, one John Dunphy made his note for $ 1,100 and defendant John Lemieu indorsed it in blank and plaintiff became the owner thereof for value before maturity. When it fell due it was protested for nonpayment and notice given the indorser. On April 28, 1893, plaintiff recovered judgment upon the note in the District Court of St. Louis County against the maker and indorser for $ 1,238.28. Execution was issued thereon to the sheriff of that county and returned unsatisfied. John Lemieu was on April 4, 1893, the owner of eight city lots and thirty acres of land in West Duluth subject to sale on execution. On that day he and wife conveyed this property to his relatives who gave notes therefor secured by mortgages thereon to his wife and she assigned the notes and mortgages to defendants, Dosite Brouillette and Angelo Brouillette who were also relatives of the judgment debtor or his wife. This action was commenced June 21, 1893, to set aside these deeds, mortgages and assignments charging that they were each and all made and taken with intent to hinder, delay and defraud John Lemieu's creditors and particularly the plaintiff. There were inaccurate descriptions of the property in the complaint. It was alleged to be in Duluth instead of West Duluth. Defendants answered and the issues were tried and on October 19, 1893, the court made findings that the conveyances, mortgages and assignments were all made and taken with intent to hinder, delay and defraud the plaintiff and ordered judgment that they be cancelled and that plaintiff's judgment is a lien thereon. Judgment was so entered. No case or bill of exceptions was made. Defendants appeal from this judgment.
Judgment affirmed.
A. N McGindley, for appellants.
One of the points on which defendants rely on this appeal is the Stewart's Addition errors. The complaint alleges that John Lemieu was the owner of lots in Stewart's Addition to Duluth and that he and his wife sold lots in Stewart's Addition to Duluth with a design and purpose to defraud his creditors. John Lemieu in his separate answer admits that he did own the lots in Stewart's Addition to Duluth and thereafter sold the same to defendant, Joseph Pauze. Joseph Pauze in his separate answer admits that he purchased these lots in Stewart's Addition to Duluth. The court below finds that John Lemieu was on April 4, 1893, the owner of the lots in Stewart's Addition to West Duluth, and sold the lots with a design and purpose to defraud creditors, and that the deed purporting to convey to Joseph Pauze lots in Stewart's Addition to West Duluth should be cancelled, annulled and set aside. In brief, the pleadings put in issue lots in Stewart's Addition to Duluth; the judgment subjects to the lien of plaintiff's judgment lots in West Duluth.
Again, the complaint alleges that John Lemieu was the owner of lots thirteen (13) and fourteen (14) in block sixteen (16), Stewart's Addition to Duluth. The trial court finds as a fact that John Lemieu was the owner in fee simple of lots thirteen (13) and fourteen (14), block eighteen (18), Stewart's Addition to West Duluth.
Can a judgment affect property in West Duluth if the pleadings put in issue property in Duluth? Can a judgment affect property in block eighteen (18) of a plat if the pleadings put in issue property in block sixteen (16) of the same plat? Throckmorton v. Davenport, 55 Tex. 236; Lazarus v. Barrett, 5 Tex. Civ. App. 5; Tribble v. Davis, 3 J. J. Marsh. 633; Burnett v. Harrington, 58 Tex. 359; Morrison v. Hart, 2 Bibb, 4; Jackson v. Cutright, 5 Munf. 308.
The evidence from which these findings were made is not before the court, but we are justified in presuming that the evidence was in accordance with the pleading and that no facts were proved which were not justified by the issues. Sumner v. Sawtelle, 8 Minn. 308; Silvey v. Neary, 59 Cal. 97; Shoemaker v. St. Louis & S. F. Ry. Co., 30 Kans. 359; Harrison v. Nixon, 9 Pet. 483; Livingston v. Ives, 35 Minn. 55; Farnham v. Murch, 36 Minn. 328; City of Winona v. Minnesota Ry. Constr. Co., 27 Minn. 415; Mahoney v. St. Paul, M. & M. Ry. Co., 35 Minn. 361.
These findings are inconsistent with the admissions of the pleadings. All parties admit in their pleadings that Stewart's Addition is in Duluth. Such findings as these, entirely outside the issues, constitute reversible error. Payette v. Day, 37 Minn. 366; Woolsey v. Bohn, 41 Minn. 235; Burnett v. Stearns, 33 Cal. 468.
The decree is that the several conveyances be cancelled, annulled and set aside. This is palpable error. The creditor has the right to have the conveyances cancelled, annulled and set aside in so far only as may be necessary for the satisfaction of his judgment; but that is the limit of his rights. The conveyances are good between the parties and they will be left in the situation in which they have placed themselves without aid from the courts. Bostwick v. Menck, 40 N.Y. 383.
C. M. Simpson and John Jenswold, Jr., for respondent.
A presumption in favor of the regularity of the proceedings of the court always obtains. Wyvell v. Jones, 37 Minn. 68; Blake v. Lee, 38 Minn. 478.
Every presumption is in favor of the findings and it is for the parties alleging error to overcome this presumption by showing error. Jones v. Wilder, 28 Minn. 238; McGeagh v. Nordberg, 53 Minn. 235.
A variance between the pleadings and proof will not be considered on appeal, unless the point has first been raised in the lower court. Washburn v. Winslow, 16 Minn. 33; Nelson v. Thompson, 23 Minn. 508; Salisbury v. Bartleson, 39 Minn. 365.
The fair construction of the judgment is that the conveyances are cancelled, annulled and set aside in so far only as may be necessary for the satisfaction of plaintiff's judgment. Counsel's argument is more technical than meritorious.
This was an action brought to set aside certain conveyances of real property, and to have surrendered and canceled certain notes and mortgages upon the same, alleged to have been made in fraud of creditors of defendant John Lemieu, in order to subject the property to the lien of plaintiff's judgment. Such of the defendants as were served with the summons answered separately, denying any fraudulent intent when procuring the conveyances mentioned in the complaint, and...
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