Kettleschlager v. Ferrick

• Decision Date: 24 January 1900
• Citation: 81 N.W. 889,12 S.D. 455
• Parties: HERBERT KETTLESCHLAGER, Plaintiff and appellant, v. MIKE FERRICK et al., Defendant and respondent.
• Court: South Dakota Supreme Court

12 S.D. 455

81 N.W. 889

HERBERT KETTLESCHLAGER, Plaintiff and appellant, v. MIKE FERRICK et al.,

Defendant and respondent.

South Dakota Supreme Court

Appeal from Circuit Court, McCook County, SD

Hon. Joseph W. Jones, Judge

Reversed

H. Wilson and H. H. Keith,

Attorneys for appellant.

P. W. Scanlan

Attorney for respondent.

Opinion filed January 24, 1900

FULLER, P.J.

This action by a judgment creditor to set aside, as fraudulent, a deed absolute in form, executed on the 27th day of July, 1887, by the defendant Mike Ferrick to his wife, the defendant Bridget Ferrick, resulted in a judgment dismissing the complaint, with costs, and plaintiff appeals. The facts essential to a determination of the law governing the case are undisputed, and these: When this deed was executed, and continuously thereafter, until the year 1894, respondents occupied the premises described therein as their homestead. No consideration was ever paid for the deed, and the conveyance was made pursuant to a secret agreement between respondents that the legal title should be vested in his wife for the sole purpose of perpetually delaying and preventing the creditors of said Mike from subjecting said premises to the satisfaction of their claims. On the day this deed was executed, a suit was pending and. being tried against him, and his avowed purpose at the time was to place the title in the name of his wife, “so that, in the event judgment went against him in that suit, or any other judgment should be recovered against him, it would not appear against the title of this land, and, in case he should move away, that they could not sell the land under such judgment.” Upon the theory that the conveyance, notwithstanding the intention of the parties, resulted in no injury to creditors, because the quarter section of land described therein was at the time impressed with the character of a homestead, the court gave respondents judgment, although it was shown that the same was abandoned as a homestead, and another homestead acquired, which was being thus occupied by respondents when this suit was commenced. The exact point to be determined is whether the homestead may be transferred by the husband to the wife, confessedly without consideration, and for the purpose of withholding such property from existing and subsequent creditors, in case they should remove therefrom, and with other funds purchase and occupy a different homestead. It appears from the record that Mike Derrick has no property subject to execution, and that appellant, on the 29th day of November, 1897, obtained his judgment against both respondents. in an action for damages sustained by reason of their negligence in setting out a prairie fire, by which a large quantity of his hay was destroyed. Contrary to the view the trial court, conditions may possibly arise which render a deed to the homestead fraudulent and void as to creditors, although their rights be postponed until the debtor and his family have no further...