House v. Johnson

• Decision Date: 11 April 1904
• Citation: 76 P. 743,19 Colo.App. 524
• Parties: HOUSE v. JOHNSON.
• Court: Colorado Court of Appeals

76 P. 743

19 Colo.App. 524

HOUSE v. JOHNSON.

Court of Appeals of Colorado

April 11, 1904

Appeal from District Court, Chaffee County.

Action by Charles F. Johnson against W.W. Woodbridge and another, in which Sherman House intervenes. From a judgment for plaintiff, intervener appeals. Affirmed.

A.L. Taylor, for appellant.

G.K Hartenstein, for appellee.

MAXWELL J.

Appellee commenced suit by attachment upon a promissory note against W.W. and F.H. Woodbridge. A writ of attachment was levied upon about 200 acres of land and certain water rights. Appellant, House, by petition, intervened, averring that he was the owner, by purchase for a valuable consideration, of the attached land, under a deed executed by W.W. Woodbridge dated and recorded May 2, 1900, and had been in possession of the land since that date. The writ of attachment was levied May 28, 1900. Issues as to the indebtedness, the attachment and the petition of intervention were tried to a jury upon special questions, for answer by "Yes" or "No"; a general verdict and general instructions being waived. The jury answered that the note had not been paid, that the transfer of the property from W.W. Woodbridge to intervener was not made in good faith and for a valuable consideration, and that such transfer was made to hinder, delay, and defraud the creditors of Woodbridge. Intervener moved for judgment notwithstanding the verdict, and for a new trial, which motions were overruled and judgment was entered in favor of appellee for the amount due on the note, sustaining the attachment, and that the land attached at the time of the levy of the writ was the property of the defendant W.W. Woodbridge, and not the property of intervener; that the deed dated May 2, 1900, from W.W. Woodbridge to intervener, purporting to convey the property, was fraudulent and void, and of no effect as against the attachment levy--and dismissed the petition of intervention, with costs against the intervener, from which judgment against him intervener appeals.

F.H. Woodbridge is the wife of W.W. Woodbridge, and the sister of intervener. The note sued on was given by the Woodbridges to J.C. Irving as a part of the consideration for the conveyance by Irving to W.W. Woodbridge of the property levied on by the writ of attachment, which note was due May 10, 1900, and indorsed by Irving to appellee after maturity.

1. The motion for judgment notwithstanding the verdict is based upon the proposition that the answer to the petition of intervention is fatally defective, in not alleging that the sale of the land was made to hinder, delay, and defraud the plaintiff; he not being the owner of the note in suit at the time of the alleged sale of the land. Such allegation is not necessary under the statute, which enacts, in substance, that every conveyance of any estate or interest in lands, goods, or things in action, made with the intent to hinder, delay, or defraud creditors or other persons, shall be void. Mills' Ann.St. § 2030. In Wilcoxen v. Morgan, 2 Colo. 473, 478, it was held "Conveyances, voluntary merely, are maintained as against subsequent creditors. A conveyance which is not only voluntary, but animated by a positive and active intent to defraud existing creditors, is void, not only as to these, but as to subsequent creditors as well. [ Citing authorities.] The terms of our statute are quite as broad as those of 13 Elizabeth, c. 5, and this effect has almost everywhere been accorded to it. The authorities cited to the contrary doctrine seem to be opposed to the settled course." In Gregory v. Filbeck, 12 Colo. 379, 382, 21 P. 489, 490, it was held: "To bring a conveyance within the statute, it must have been 'made with the intent to hinder, delay or defraud creditors or other persons of their lawful suits, damages, forfeitures, debts or demands.' Gen.St.1883, § 1526. The wording of the statute clearly shows that it was not intended to limit the protection thereby given to creditors existing at the time when the conveyance is made. The object of the statute is to protect all persons against conveyance made to hinder or defraud them of their lawful suits, damages, forfeitures, debts, or demands. The necessary and material thing, to bring a case within the protection of the statute, is not that the party invoking its aid should have an existing cause of action or demand at the time the conveyance is...