Fidelity Sav. & L. Ass'n v. Reese

• Citation: 171 N.W. 812,41 S.D. 546
• Decision Date: 01 April 1919
• Docket Number: 4429
• Parties: FIDELITY SAVINGS & LOAN ASSOCIATION, Plaintiff and appellant, v. EDWARD REESE and ANNA M. REESE, Defendants and Respondents.
• Court: South Dakota Supreme Court

41 S.D. 546

171 N.W. 812

FIDELITY SAVINGS & LOAN ASSOCIATION, Plaintiff and appellant, v. EDWARD REESE and ANNA M. REESE,

Defendants and Respondents.

South Dakota Supreme Court

Appeal from Circuit Court, Charles Mix County, SD

Hon. Robert B. Tripp, Judge

#4429--Reversed

P. A. Hosford, G. M. Caster, Edwin R. Winans

Attorneys for Appellant.

Lucius G. Nash, French, Orvis & French

Attorneys for Respondents.

Opinion filed April 1, 1919

WHITING, J.

Defendants are husband and wife and, at all the times hereinafter mentioned, were residents of the state of Washington. In a foreclosure action in the state of Washington, plaintiff procured a money judgment against the husband upon which, after foreclosure sale, there remained a deficiency unpaid. The husband had, at one time, held the title to certain real property in this state, title to which he had conveyed to, and which still remains of record in, his wife. Plaintiff brought the present action setting forth the deficiency judgment it held against the husband; that defendants were residents of Washington; that the husband was insolvent; that an issuance and levy of an execution on the deficiency judgment would be of no avail or effect; that neither defendant had any other property in South Dakota than the property which the husband had conveyed to the wife, describing it; and that, for reasons set forth in such complaint, such conveyance was fraudulent and void as to this plaintiff. Plaintiff sought a money judgment; that the sale from the husband to wife be set aside and held for naught; and that it be permitted to sell said real property to satisfy the judgment recovered. There were certain allegations upon which a claim for money judgment against the wife was made, but we do not need to consider these, as it is undisputed that the wife was not personally liable for the judgment sued on. Plaintiff, at the time of commencing this action, sued out a writ of attachment which was levied on this land. It was through such attachment and publication of summons that plaintiff sought to give the court jurisdiction herein. The trial court made findings and conclusions and entered judgment thereon in favor of the defendant wife. From such judgment and an order denying a new trial this appeal was taken.

The trial court refused several findings requested by appellants and made some findings to which exceptions were taken. It is conceded by respondent that the evidence sustained certain of the requested findings and that the findings as made are not in all respects supported by the evidence. It contends that these errors in the findings are immaterial in view of one of the conclusions entered by the trial court. The trial court concluded that the plaintiff "had no legal standing or right ... to attack on any ground the conveyance of said property" from the husband to the wife. It is because of this last conclusion that respondent contends that any errors as to findings were immaterial. It is certainly true that any finding, as to any alleged fact upon which the invalidity of the conveyance from husband to wife is based, is absolutely immaterial if this conclusion is sound. We might be left somewhat in doubt as to the basis of this conclusion were it not for the concession in respondents' brief. Respondents state that the conclusion reached by the court was based upon the theory that appellant was not entitled to bring an action testing the validity of the conveyance from the husband to the wife until it had exhausted all of its legal remedies. It seems to be respondents' position that it was incumbent upon the plaintiff to have brought an action against the husband alone (in which it might have attached the land in question); and that, after having procured a judgment against the husband, it might then bring an action against the wife and, upon a showing that there was no other property of the husband's out of which the judgment could be satisfied, have the right to an adjudication that the conveyance was void as against plaintiff.

While appellant concedes that ordinarily, before a creditor can attack a conveyance by the debtor as fraudulent, it must have exhausted all its legal remedies against other property that the debtor may have had, it contends that, under the facts pleaded, it had the right to bring this action, joining both husband and wife as defendants; and, in this action, recover, not only a money judgment against the husband, but also a judgment vacating the questioned conveyance and adjudging that the money judgment be satisfied out of the property in question.

We think it too clear to admit of discussion that the issue as to the validity, as against appellant, of the conveyance in question, is an issue lying solely between appellant and the wife—the party claiming the property. The trial court found respondents to be residents of Washington and that appellant was entitled to the money judgment against the husband. It refused to find, though the proof thereof was absolute, that neither of the respondents had any other property in this state. The wife did not, in her amended answer, deny, and it therefore stood admitted by her (31 Cyc. 207; Calkins v. Seabury-Calkins Consol. Min. Co., 58 N.W. 797), that her husband was insolvent and that an issuance and levy of an execution on the Washington judgment would have been of no avail or effect....