In re Vadner

Decision Date06 November 1918
Docket NumberA-91.,265
PartiesIn re VADNER. v. VADNER et al. (PRUETT, Intervener). VADNER
CourtU.S. District Court — District of Nevada

[Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Charles and Agnes Vadner were married October 1, 1895, in Massachusetts. There were born to them three children, now living, to wit, Margaret Vadner Harris, aged about 21 years; Samuel Vadner, aged about 20 years; and Ivers Vadner, aged about 14 years. In June, 1915, in the district court of the Third judicial district for the county of Salt Lake, Utah, Agnes Vadner obtained a judgment against Charles Vadner, awarding her for the separate maintenance of herself and her minor children, until further order of that court, the sum of $125 per month. She was also awarded $250 attorney's fees and $62.70 costs. It was provided in the judgment that the payment of said $125 per month be secured by, and be a lien upon, all the right, title, and interest of Charles Vadner in and to a promissory note for $8,500, bearing date Salt Lake City, Utah, July 30, 1915, signed by S.N.A. Downing and Lillian Downing, payable three years after date, with interest at 7 per cent. per annum, to said Charles Vadner, and secured by a mortgage on real property in Salt Lake county. It was also stated that the note and mortgage were then in the custody and possession of the clerk of that court. This judgment was also made a lien on all real estate situated in the state of Utah in which Charles Vadner had any interest, but specifically on the Vadner Terrace, and furniture contained in premises numbered 1098 Third avenue, Salt Lake City, Utah. Charles Vadner was restrained from disposing of, or attempting to dispose of, or incumbering any of the property described in the judgment. May 29, 1915, a few months prior to this judgment, Vadner, who was then the owner of a two-thirds interest in the said Vadner Terrace, a parcel of tenement property in Salt Lake county, Utah, then yielding a monthly rental of $300, deeded his interest to his mother, Phebe Vadner, who, August 17, 1915, deeded the same property to the Basic Fund Company, a Montana corporation, of which Phebe Vadner was vice president and Charles Vadner general manager. May 23, 1917, the Basic Fund Company executed a mortgage for $6,000 on its two-thirds interest in the Vadner Terrace to the estate of Samuel Vadner, deceased, Phebe Vadner and Charles Vadner, executors. Samuel Vadner was the father of Charles Vadner and the husband of Phebe Vadner. Shortly after the Downing note and mortgage had been deposited with the clerk of the Utah state court Charles Vadner executed a written assignment of an interest in the note and mortgage to Henry L. Vadnais. February 9, 1917, the Downing note and mortgage were sold at sheriff's sale, under said judgment, for $1,000 to Fisher Harris, who was then acting as the agent of Agnes Vadner. This amount was credited on the judgment. Harris had borrowed the money from the Bankers' Trust Company; he gave his note therefor, and as collateral security assigned the Downing note and mortgage to the Trust Company. Harris is the husband of Margaret, daughter of Charles and Agnes Vadner.

March 29, 1917, Agnes Vadner in said district court commenced an action against Charles Vadner, numbered 22981. The complaint is in four counts. The first is for $4,500, borrowed money, with interest thereon from June 29, 1905; the second is for $16,636.55, rents and profits arising from Agnes Vadner's separate property in Massachusetts, which amount Charles Vadner is alleged to have collected during the 15 years immediately prior to June, 1915. The third count is for $558.72, money loaned February 14, 1908; and the fourth count is also for money loaned, to wit, $65, November 25, 1908. April 30, 1917, Charles Vadner filed his answer and counterclaim, in which he asked that Agnes Vadner be adjudged to own an interest in the Downing note and mortgage to the extent of $4,500, with accrued interest at 7 per cent. from the date thereof, to wit, July 30, 1915. He admits that for about ten years prior to June, 1915, he received the rents from his wife's property in Massachusetts, averaging no more than $36 per month, all of which he alleges was paid out on her personal obligations, together with the sum of $18,000 out of his own estate; wherefore he asks judgment against Agnes Vadner for $18,000, with interest and costs. The allegations of the third and fourth counts are denied. November 9, 1917, Agnes Vadner filed an amendment to her complaint, adding a fifth count, in which she demanded judgment for $927, money loaned to Vadner in 1906; this was denied by the latter in an answer filed November 27, 1917. On the same day Vadner filed an amendment to his answer, in which he alleged that in November, 1906, he purchased for his wife, and as her agent and at her request, 235,000 shares of the capital stock of the Humboldt Mining Company for $4,700, paying for the same himself, and that no part of this sum has been repaid. In the next paragraph he alleges that the sum of $4,700 was paid by him 'out of moneys of the plaintiff held by him as her agent, and not otherwise. ' He prays that he be given credit against the plaintiff's claim for said sum of $4,700. November 16, 1917, an amended complaint was filed, in which it was alleged that the $4,500 mentioned in the first count of the original complaint was invested by Charles Vadner in the Vadner Terrace, under an agreement that plaintiff should have an interest therein and to that extent, but that Vadner had repudiated the trust, and caused the legal title of the property to be conveyed to the Basic Fund Company, which is holding the same in secret trust for him. It was also averred that Phebe Vadner and Charles Vadner, 'as executors of the estate of Samuel Vadner, deceased,' and Phebe Vadner, claimed an interest in the property. The prayer is that said sum of $4,500, with the profits accruing thereon, be adjudged a lien on the Vadner Terrace superior to any claims of any of said defendants, and that said lien be foreclosed. To plaintiff's last amendment Charles Vadner filed his answer November 30, 1917.

This cause was tried by the court without a jury. December 6, 1917, the findings of fact and conclusions of law were filed, and on the same day the court rendered a judgment in favor of Agnes Vadner for the sum of $8,975, with interest thereon from date until paid. This sum was adjudged to be a specific lien on Vadner's interest in the Vadner Terrace, and it was ordered that those premises 'be sold to the extent of Vadner's interest for the satisfaction of the judgment. ' It was further ordered that the plaintiff recover from the defendant Vadner, on her second, third, and fourth causes of action, the sum of $9,010.78, with interest at 8 per cent. per annum from date and costs; that she recover nothing on the fifth cause of action, and that as to the impleaded defendants, Phebe Vadner and Charles S. Vadner, as executors of the last will and testament of Samuel Vadner, deceased, and Basic Fund Company, the cause be continued for appearance and further service of process. The trial commenced April 24, 1918. The plaintiff was permitted by an order of court filed November 16, 1917, to bring in the additional parties named, to wit, the Basic Fund Company, and Phebe Vadner and Charles S. Vadner, as executors of the last will and testament of Samuel Vadner, deceased.

December 18, 1917, the Basic Fund Company filed its petition for removal of case No. 22,981, in which judgment was rendered December 6, 1917, to the United States District Court of the state of Utah. The petition was verified by W. R. Hutchinson, and showed that the company was a Montana corporation, and Agnes Vadner a citizen and resident of Utah; that the Basic Fund Company was made a party defendant about November 15th, and served with summons November 28, 1917. On the same day the petition was filed an order of removal to the United States District Court for the state of Utah was entered. A further answer was filed, by Vadner, December 21, 1917, and still another on the same day, in which he appeared as one of the 'executors of the estate of Samuel Vadner, deceased,' averring 'that said estate disclaims any interest in said described real estate. ' On the following day, December 22, 1917, Vadner filed his notice of motion for a new trial; and on the 30th day of the following month, January, 1918, he moved the court to modify its findings.

November 8, 1917, in the same court, Agnes Vadner commenced a divorce suit against Vadner, numbered 24,141. December 7, 1917, suit numbered 24,286 was commenced by her to set aside conveyances by Vadner as having been made to defraud his creditors.

December 12, 1917, Charles Vadner filed in the United States District Court for Nevada his petition to be declared a voluntary bankrupt, and on the following day an order of adjudication and reference was entered. In the schedules filed with the petition it is shown that his debts amounted to $10,147.25, all of which except $37.25 were due to Agnes R. Vadner, as follows: $420 on the judgment in the separate maintenance suit; $4,500, money borrowed in June or August, 1905; $65, money borrowed in June, 1905; $525 for horse, harness, and carriage bought by Mrs. Agnes Vadner in June, 1905, for which Vadner agreed to pay; $4,500 borrowed in installments of $25 between June, 1905, and November, 1915.

After the record in this cause, numbered 22,981, had been filed in the Utah federal court, the Basic Fund Company also filed therein, February 6, 1918, its answer, denying that it was a dummy corporation and a mere alias of Charles Vadner. It asserted absolute...

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