Davis v. Howe

• Decision Date: 08 April 1924
• Docket Number: Case Number: 14910
• Citation: 1924 OK 402,99 Okla. 118,226 P. 316
• Parties: DAVIS v. HOWE et al.
• Court: Oklahoma Supreme Court

1924 OK 402

226 P. 316

99 Okla. 118

DAVIS v. HOWE et al.

Case Number: 14910

Supreme Court of Oklahoma

Decided: April 8, 1924

Syllabus

¶0 1. Fraud--Burden of Proof.

Where fraud is charged, it becomes a question of fact and must be proved by the party alleging the fraud, and cannot be inferred from facts which may be consistent with honesty of purpose.

2. Same--Presumption Against Fraud.

Fraud is never presumed, but must be proved by clear and satisfactory evidence, and when a transaction is fairly susceptible of two constructions, the one which will free it from the imputation of fraud will be adopted.

3. Conversion -- "Definition" -- Burden of Proof--Aiding in Conversion.

"'Conversion' is any distinct act of dominion wrongfully exerted over another's personal property in denial of or inconsistent with his rights therein." McClintock et al. v. Parish, 72 Oklahoma, 180 P. 689. And where, the plaintiff brings action, against a party for damages for aiding in the conversion of his property, it is incumbent upon such plaintiff to show that the party charged with aiding in the conversion had actual notice of plaintiff's rights, or had actual notice of the infirmity in the title of the party defendant is charged with aiding in the conversion, before he is entitled to recover a personal judgment for damages.

4. Same--Failure of Evidence.

Where, in an action, for damages for aid: ing in the conversion of plaintiff's property, and there is a complete failure in plaintiff's proof to show that the defendant charged knew of the plaintiff's ownership in the property, there is an entire lack of evidence to support a verdict for damages for aiding in the conversion, and a demurrer to the evidence, or motion for a directed verdict, should be sustained.

5. Appeal and Error--Failure of Evidence--Reversal.

Where there is no proof offered by plaintiff to sustain a verdict of a jury for damages, but such verdict is, nevertheless, returned a personal judgment thereon for damages and declaring it a lien upon defendant's property cannot be upheld, but should be reversed on appeal.

6. Same.

Record examined, and held, that there is no evidence to support the verdict for damages against the defendant; and held, that the personal judgment entered thereon against defendant for damages, and declaring the same to be a lien upon defendant's property, should be reversed, with direction's to grant the defendant a new trial.

Commissioners' Opinion, Division. No. 4.

Error from District Court, Oklahoma County; George W. Clark, Judge.

Action by Charles E. Howe, Nellie E. Howe, and E. C. Hall, receiver of the property of J. C. Davis, against Bessie Davis, for damages in the sum of $ 4,500, for wrongfully and fraudulently aiding in the conversion of property belonging to plaintiffs; and to cancel conveyances. Judgment for plaintiffs, and defendant appeals. Reversed and remanded, with directions.

Homer N. Boardman, for plaintiff in error

Gasper Edwards, for defendants in error.

SHACKELFORD, C.

¶1 The plaintiff in error, defendant below, will be referred to herein as the defendant, and the defendants in error, plaintiffs below, as the plaintiffs.

¶2 The plaintiffs commenced this action in the district court of Oklahoma county on the 6th of December, 1922. The plaintiffs, by their petition, seek to recover the sum of $ 4,500 as damages for the wrongful and fraudulent aiding J. C. Davis in the conversion of a part of the proceeds of the sale of a farm of plaintiffs Charles E. Howe and Nellie R. Howe, amounting to $ 4,500, and to set aside conveyances covering certain property, made by J. C. Davis to the defendant Bessie Davis. It is alleged that plaintiffs had previously obtained judgment against J. C. Davis and that he made certain fraudulent conveyances without any consideration, to the defendant Bessie Davis, for the purpose of hindering and delaying the judgment creditors from collecting their judgment.

¶3 After demurrer filed and overruled, defendant answered by general denial, except such allegations as are admitted; and by certain specific denials to the following effect; that she never at any time or in any manner aided J. C. Davis to wrongfully convert the proceeds of the plaintiffs' farm; that she is in no way involved in the case of plaintiffs against J. C. Davis, and knew nothing about the conditions under which the judgment was taken against J. C. Davis; and that J. C. Davis did not wrongfully convert the proceeds of plaintiffs' farm; and that the transfers of property made to her were not for the purpose of hindering and delaying plaintiffs in the collection of their judgment, but were transferred: to her for valuable considerations, and that she is now the owner of the property conveyed to her and that plaintiffs have no rights whatever therein. Defendant set up a second defense by plea of the statute of limitations. Plaintiffs replied, joining the issues.

¶4 The cause was called for trial on the 16th of March, 1923, and was tried to a jury, resulting in a verdict for plaintiffs against defendant in the sum of $ 4,500 with interest at six per cent. per annum from September 23, 1920. Upon this verdict the court rendered personal judgment against defendant in favor of plaintiffs in accordance with the verdict; and decreed the amount to be a lien upon the property described in the conveyance sought to be set aside; and decreed that the said property be treated as trust property in the hands of the defendant to discharge the judgment, and directed execution to issue. The defendant filed motion for a new trial, which was overruled, from which judgment and order overruling the motion for a new trial the defendant prosecutes appeal and the cause is here for review.

¶5 The defendant presents the following assignments of error: (1) The verdict of the jury is not sustained by sufficient evidence; (2) the verdict of the jury is contrary to law; (3) the court erred in overruling plaintiff in error's demurrer to the evidence; (4) the court erred in overruling plaintiff in error's motion for an instructed verdict; (5) the court erred in giving instruction number four; and (6) the court erred in overruling the motion for a new trial.

¶6 We will examine these assignments of error under two general propositions or questions:

(1) Are the plaintiffs entitled to a personal judgment for damages against the defendant under the pleadings and proof in the case?

(2) Are the plaintiffs entitled to a judgment fixing a lien upon defendant's propert to satisfy the judgment based upon the verdict, under the pleadings and proof in the case?

¶7 The allegations of the plaintiffs upon the first proposition are that the defendant knowingly, willfully, and fraudulently aided J. C. Davis in the conversion of certain of the proceeds of the sale of the plaintiffs' farm, amounting to $ 4,500, and thereby damaged plaintiffs in the said sum.

¶8 The facts leading up to this suit, briefly, are that the plaintiffs listed their farm with J. C. Davis as a real estate broker, for sale or exchange, and that Davis effected an exchange of the property of plaintiffs for certain apartment house property in Oklahoma City, on terms satisfactory to the plaintiffs, and plaintiffs made a deed to the farm, leaving the name of the grantee blank, and accepted a deed to the apartment house property, and took possession of the said property and delivered possession of their farm. That at the same time the exchange of property was being made, J.C. Davis was making a deal to sell the farm to still another party, and did sell it. That plaintiffs found out shortly afterwards that Davis had made a profit in turning the farm, of $ 4,500. It appeared that in making the deal Davis borrowed $ 4,000 from his wife, and afterwards transferred to her certain notes which he acquired upon the sale of the farm. After the plaintiffs found that Davis had made a profit in handling the farm, they brought suit against him for the amount and prosecuted the cause to judgment against J. C. Davis. After judgment was obtained the plaintiffs, not being able to find property belonging to Davis on which to levy to satisfy the judgment, brought a proceeding in aid of execution, and therein found that Mrs. Davis had handled the notes, or some of them, Mr. Davis got in the sale of the farm and that Davis had sold to Mrs. Davis, defendant, a certain piece of property located in Clinton, Okla., and another in Oklahoma City.

¶10 The plaintiffs, upon the trial of this cause, showed that J. C. Davis and the defendant Bessie Davis are husband and wife; that they were married on May 9, 1906, and were living together as husband and wife at the time of the exchange and sale of the plaintiffs' farm, and were living together at the time of the trial of this cause. They showed by the testimony of Charles E. Howe, one of the plaintiffs, that he obtained a judgment against J. C. Davis on the 9th of September, 1921; that a hearing was had in aid of execution on the 28th of October, 1921; that defendant Bessie Davis testified upon that hearing; that plaintiff Charles E. Howe heard her testimony; that Mrs. Davis said she had gone out with Davis to look at the Howe farm and that she furnished Davis $ 4,000 in making the deal; that she said Mr. Davis was making the deal for Howe, as she understood that he wanted to sell: Howe, the witness, said that he received a piece of property in Maywood addition for his farm and that Mrs. Davis said on that hearing that the property belonged to Mr. Aulbach; that witness had found that Davis had sold the farm to Mr. Miller for $ 14,000 of which amount he got $ 2,000 in cash, and $ 8,000 worth of notes, and the buyer assumed payment of a mortgage for $ 4,000; and that Mrs. Davis had said $ 6,000 worth of the notes were transferred to her some time in the latter part of 1920, but witness Howe, himself, thought that the transfer or assignment was made about the first of January, 1921. Witness testified that the...