Gwynn v. Butler

• Decision Date: 30 November 1891
• Citation: 17 Colo. 114,28 P. 466
• Parties: GWYNN et al. v. BUTLER.
• Court: Colorado Supreme Court

28 P. 466

17 Colo. 114

GWYNN et al. v. BUTLER.

Supreme Court of Colorado

November 30, 1891

Appeal from district court, Arapahoe county.

Action by Hugh Butler against George R. Gwynn and Elizabeth Gwynn his wife, to subject certain lands to the payment of plaintiff's judgment. Judgment for plaintiff. Defendant Elizabeth appeals. Affirmed.

Syllabus by the Court

1. Pleadings may be amended on the trial of an action; and an amendment allowed at the opening of a trial, though not actually incorporated into the record until afterwards, is not ground for reversal, when it appears that the time and mode of amendment did not affect the substantial rights of the parties.

2. A voluntary conveyance by a husband to his wife, which is intended or which tends to defraud existing creditors of the husband, cannot be upheld against such creditors. If the husband be insolvent at the time of making such conveyance or if by reason of such conveyance he is rendered unable to pay his existing debts, the wife's title will be deemed fraudulent. Under such circumstances, the conveyance cannot be sustained on the ground that the wife was innocent in accepting it, or ignorant of its effect upon her husband's creditors.

3. When the trial is by the court without a jury, the court is the judge, not only of the credibility of the witnesses and of the weight of the evidence, but of the inferences properly deducible from the facts and circumstances as proved.

L C. Rockwell and Harry Carr, for appellant.

Hugh Butler, for appellee.

ELLIOTT, J.

The assignments of error present two principal grounds for the reversal of the decree: First, that the complaint does not state facts sufficient to constitute a cause of action; second, that the evidence was not sufficient to support the findings of the court.

1. The complaint of Mr. Butler, plaintiff below, was in the nature of a creditors' bill. Having an unsatisfied judgment against the defendant George R. Gwynn Mr. Butler sought by this action to subject to the satisfaction of such judgment certain real property, hereinafter described, the title of which stood in the name of the other defendant, Mrs. Elizabeth Gwynn, wife of said George. From the complaint it appears that during the winter and early spring of 1885 the defendant George R. Gwynn was in possession of certain mining property, from which he had realized a considerable sum of money, a large part of which, to-wit, $10,000, was at some time during February or March of that year turned over to his wife, and removed from the state of Colorado. Early in March, 1885, Mr. Gwynn became involved in litigation concerning said mining property, and the proceeds thereof, in consequence of which he employed Mr. Butler as his attorney and counselor at law. Through Mr. Butler's services a compromise and settlement were effected by which Mr. Gwynn's interests in said mining property and the proceeds thereof as aforesaid were secured; and by which, also, certain ores of the value of about $7,000, and the further sum of over $4,000 in money, were realized by Mr. Gwynn. The complaint shows that, of these last-mentioned sums so realized, Gwynn caused over $8,000 to be immediately transferred to his wife without consideration, and that shortly thereafter $5,000 of said moneys were invested in certain real property in the name of his wife as above stated, and that such transfer and investment were made with intent to cheat and defraud the plaintiff. The complaint further shows that in August, 1885, Mr. Butler sued Mr. Gwynn, and obtained judgment against him for the sum of $2,000 and costs on account of the legal services rendered as aforesaid; and that at and before the commencement of the present action, to secure satisfaction of said judgment, the said George R. Gwynn had become and was insolvent, having no property in the state of Colorado subject to execution out of which said judgment could be collected. It is objected by appellant that the complaint is insufficient because it does not show that Gwynn was insolvent at the time he caused any of the said several sums of...