Gen. Explosives Co. v. Wilcox

• Decision Date: 12 June 1928
• Docket Number: Case Number: 18583
• Citation: 268 P. 266,131 Okla. 190,1928 OK 391
• Parties: GENERAL EXPLOSIVES CO. v. WILCOX.
• Court: Oklahoma Supreme Court

1928 OK 391

268 P. 266

131 Okla. 190

GENERAL EXPLOSIVES CO. v. WILCOX.

Case Number: 18583

Supreme Court of Oklahoma

Decided: June 12, 1928

Syllabus

¶0 1. Depositions--Exceptions to Deposition as a Whole--Waiver of Statutory Requirements by Stipulation.

Section 629, C. O. S. 1921, requires exceptions to a deposition as a whole to be in writing, specifying the grounds of objection and to be filed with the papers in the cause before commencement of the trial, but the requirements of said section may be waived, and are waived by a stipulation contained in a deposition that objections may be made in progress of the trial as to the whole deposition or any interrogatory therein propounded for any reason.

2. Depositions--Right to Use--Effect of Witness Being Within Jurisdiction of Court.

Sections 612 and 626, C. O. S. 1921, provide the deposition of a witness cannot be used as evidence in the trial of a cause where it appears that the witness is within the jurisdiction of the court, except where such witness is disabled or imprisoned, or dead.

3. Appeal and Error--Necessity for Objections and Exceptions in Trial Court.

An objection made in the trial of a cause is addressed to the trial court; exceptions are made as a predicate for review by the appellate court. Without exceptions made, the objector acquiesces in the ruling of the trial court.

4. Fraudulent Conveyances--inadmissibility of Declarations of Fraudulent Intent Made by Vendor After Transfer.

Declarations of fraudulent intent made by the vendor after transfer are not admissible as against the vendee to affect her title where no fraud is established and possession passes and where the declarations were not made in the presence of vendee.

5. Same--Action by Creditors to Cancel Deed--Prerequisites to Relief.

It is a prerequisite to relief in equity that legal remedy be exhausted, consequently, where a deed is sought to be set aside on the ground of being executed in fraud of judgment creditors, it is a condition precedent to establish either execution returned nulla bona or to prove insolvency.

Error from District Court, Tulsa County; Luther James, Judge.

Action by the General Explosives Company against Ella Wilcox to cancel a warranty deed. Demurrer sustained to evidence of plaintiff and judgment rendered dismissing plaintiff's petition, from which plaintiff appeals. Affirmed.

Shell Bassett, for plaintiff in error.

John B. Meserve, for defendant in error.

RILEY, J.

¶1 The appellant explosive company instituted this action below on January 28, 1926, against Ella Wilcox, to cancel a warranty deed from H. H. Wilcox to defendant below, which deed on its face appears to have been executed and delivered January 3, 1922, and duly recorded November 4, 1925, and "in consideration of the sum of $ 1 and other valuable considerations," and in conveyance of the N.E. 1/4 of section 1, township 17 N., range 12 E., Tulsa county, Okla.

¶2 The evidence below established that Ella Wilcox was the wife of H. H. Wilcox, and that plaintiff below was a judgment creditor of H. H. Wilcox, which latter relation was created by H. H. Wilcox on September 17, 1921, having signed as surety an appeal bond, the appeal of which was dismissed by this court on September 6, 1922, and thereafter on February 12, 1925, the plaintiff below having obtained judgment against H. H. Wilcox in the sum of $ 7,100 on said bond.

¶3 The grounds alleged for cancellation were fraud by reason of (1) insolvency of grantor at the time of execution of the deed; (2) lack of consideration for the deed; (3) knowledge of grantee of insolvency of grantor; (4) withholding of deed from record.

¶4 The defendant answered by a general denial and alleged that she was owner of the one-fourth interest in the land described; that she acquired said land by a warranty deed from H. H. Wilcox on January 6, 1922, for a valuable consideration paid in the sum of $ 2,000.

¶5 The trial court sustained a demurrer to the evidence of plaintiff and dismissed plaintiff's petition.

¶6 There was no allegation in the petition nor proof of attachment issued upon the land in question. There was no competent evidence to sustain the allegation that grantor, H. H. Wilcox, did not possess other property from which the judgment could be satisfied. The allegation of the petition that H. H. Wilcox was insolvent was not established by competent evidence.

¶7 The only evidence offered touching upon the insolvency of H. H. Wilcox was the deposition of Joseph B. Bartlett. Objection at trial was made to the entire deposition, which was in accord with the stipulation contained in the same, which inclines us to the view that the rule expressed in Bagg v. Shoenfelt, 71 Okla. 195, 176 P. 511, and in section 629, C. O. S. 1921, was waived.

¶8 That section and rule require exception to deposition as a whole to be in writing, specifying the grounds, and filed in the cause prior to commencement of trial; yet such time and form as specified by the rule may be waived. W. F. & N.W. Ry. Co. v. Davern, 74 Okla. 151, 177 P. 909. Herein the parties stipulated that the defendant should have the right to object to the deposition or any interrogatory therein propounded, in part or portion thereof, on the grounds of its competency, relevancy, or materiality, or for any other reason. The construction put upon this stipulation by the act of the parties was that objections were intended to be made at and in the course of trial. The stipulation was a waiver of the provisions of section 629, supra. The deposition itself shows Bartlett lived in Tulsa and was within the court's jurisdiction and amenable to process and willing to obey its process. It appears (C. M. p. 30) that Bartlett was under process of subpoena, but because of important business he was excused by plaintiff. Under the facts herein, the statute barred the use of the deposition. Section 612, C. O. S. 1921. There was no legal cause for nonattendance of the witness. Section 626, C. O. S. 1921.

"A deposition cannot be used where the witness is within the jurisdiction of the court." Schaff v. Coyle, 121 Okla. 228, 249 P. 947.

¶9 The trial court reluctantly admitted the deposition over the objection of defendant. The admission of same was error. We note that no exception was saved to the admission. It must be remembered that objections are addressed to the trial court, while exceptions are made as a predicate for review of the ruling of the trial court. Without exception noted, the objector acquiesces in the ruling of the trial court. We, therefore, consider that the defendant acquiesced in admission of the deposition as a whole. However, objections were sustained by the trial court to practically all material questions propounded to the witness Bartlett, and properly so. The only material evidence contained in said deposition to which objection was not sustained was that H. H. Wilcox, after the transfer of title by warranty deed to his wife, manifested some interest in the land in controversy by requesting delay of an independent lawsuit, the Oil Well Supply Company's suit against him, and said he expected to sell the land in question and settle that claim. Such testimony was in response to the question:

"About when was that conversation, if you remember?"

--and certainly was not responsive to the question, and hearsay, and so incompetent upon such objections made.

¶10 The trial court reserved its ruling upon the question of admission of statements made by Wilcox against his wife's interest, but finally held the same incompetent. H. H. Wilcox was not a party to the action, nor was he called as a witness.

¶11 The trial court's delayed ruling is sustained, 12 R. C. L. 676; 41 L. R. A. (N. S.) 22-31. Subsequent declarations by a grantor are not admissible against a grantee. We conclude there was no competent evidence establishing the insolvency of grantor.

¶12 We hold that a court of equity may be justified in not interfering to annul a voluntary conveyance claimed to be fraudulent against creditors, unless insolvency of the debtor be shown by execution returned nulla bona, or other satisfactory proof. Gwyer v. Figgins, 37 Iowa 517; Turner & McKnight v. Adams, 46 Mo. 95; Ziska v. Ziska, 20 Okla. 634, 95 P. 254. Here the trust alleged and the judgment lien depended upon a fraudulent conveyance. The fraudulent conveyance depended upon insolvency, alleged, but not established by proof, so there was no trust nor lien established, and it would seem a prerequisite to relief in equity that showing be made of exhausted legal remedy, issuance of execution upon the judgment and return thereon nulla bona, or by proof of insolvency.

¶13 There was no competent evidence to show that grantor did not possess other property out of which the judgment might have been collected within the law and without resort to equity.

¶14 We do not hold that the fruitless execution, although generally conclusive, is the only means of proof of exhausted remedy at law, for neither law nor equity requires a useless thing or a meaningless form. But we do hold that inadequacy of legal remedy must be shown before equity will relieve. In such a case as this, it seems to us, in the absence of allegations or proof of an execution returned unsatisfied, that insolvency must be established as a fact. Insolvency was not established. The allegation of knowledge on the part of the grantee of the insolvency of grantor likewise failed in proof. Lack of consideration was indicated only by a circumstance. That was by failure of the deed to bear upon it an internal revenue stamp, whereas the laws of the United States in force at the time of the execution of the deed provided when the consideration exceeded $ 100, such stamps should be placed thereon. Baumhoff v. O. C. G. &...