Kranjcec v. Belinak
| Decision Date | 14 December 1942 |
| Docket Number | 8323. |
| Parties | KRANJCEC v. BELINAK et ux. |
| Court | Montana Supreme Court |
Rehearing Denied Jan. 12, 1943.
Appeal from District Court, Fourteenth District, Musselshell County W. C. Husband, Judge.
Action by Mirko Kranjcec against Charles Belinak and another to set aside a transfer of property on the ground that the transfer was without consideration and fraudulent. Judgment for the defendants, and the plaintiff appeals.
Judgment affirmed.
A. G McNaught, of Roundup, for appellant.
G. J Jeffries, of Roundup, for respondents.
This is an appeal by the plaintiff from a judgment for the defendants in an action to set aside a transfer of property by a husband to his wife on the ground that the transfer was without consideration and fraudulent.
The complaint alleges that on February 13, 1937, the plaintiff in this action obtained a judgment against Charles Belinak in the district court in and for the county of Musselshell which, with interest and costs, amounted to $811.44; that execution issued in that action March 19, 1937, with directions to levy upon lots numbered 4 and 6 in Block Numbered 12 in the townsite of Republic in Musselshell county, and that levy was duly made on the property described. It is further alleged that by reason of the levy plaintiff has a lien upon the property mentioned; that on February 12, 1937, Charles Belinak by deed transferred title to the lots described to his wife, Anna Belinak, and that such transfer was made without consideration, fraudulently and with intent to hinder, delay and defraud the creditors of Charles Belinak, and especially to prevent the collection of plaintiff's judgment. It is further alleged that at the time of conveying the lots mentioned to his wife neither of the defendants in this action had any other property out of which the plaintiff could satisfy his judgment, and that by reason of such transfer Charles Belinak became wholly insolvent. Plaintiff prays that the court declare the transfer from Charles to Anna Belinak void and that the latter be declared to hold the same as trustee for satisfaction of plaintiff's judgment, and that the property described be sold under execution and the proceeds applied to the payment of his judgment with costs. A general demurrer to the complaint was overruled.
The answer admits that Charles Belinak appeared as the record owner of the real estate described in the complaint for a long time prior to the transfer to his wife; admits that the trial which resulted in the judgment in favor of the plaintiff was commenced February 10, 1937, and a verdict returned therein favorable to the plaintiff on February 11, 1937. To all the rest of the allegations a general denial was made. By way of further answer it is alleged that the said Anna Belinak was at all the times mentioned in the complaint the owner of the premises levied upon and the whole thereof. As a second further defense it is alleged that on the first day of February, 1938, Anna Belinak, on behalf of her husband and her minor children and pursuant to the statutes of Montana, duly executed a declaration of homestead covering the premises involved, and that the same was filed and appears of record in the office of the county clerk of Musselshell county. A copy of the declaration of homestead was made Exhibit A and attached to the answer. In the declaration of homestead it is certified that the estimated value of the property is not in excess of $2,500, and that, in the judgment of the affiant, the actual cash value of the premises does not exceed $500, and that the area of the lots does not exceed one-fourth of an acre.
The cause came on for hearing before the court sitting without a jury. The court granted a motion for default of defendants as to the affirmative answer, the defendants having failed to plead further as to that portion of their answer after demurrer was sustained. This left the action to be determined on the complaint and answer. The cause was submitted on briefs, and proposed findings of fact were submitted by both parties. Thereafter certain exceptions of the plaintiff to the court's findings of fact and conclusions of law were submitted and, certain of the exceptions being allowed, the court made amended findings, generally in favor of the defendants, and more particularly found that at the time of the levy of execution the property involved in the controversy stood on the records of Musselshell county in the name of Anna Belinak and that she was the true and lawful owner thereof; that there was a money consideration mentioned in the warranty deed by which title to the lots described was transferred from the husband to the wife, but that the consideration and the object and purpose of the deed was to "place the naked, legal title" to the property in the name of Anna Belinak, the true and lawful owner thereof. It was further found that in the year 1922 Anna Belinak purchased the lots together with the tenements, hereditaments and appurtenances thereto belonging, in the absence of her husband, Charles Belinak, and with the separate and individual money of the defendant Anna Belinak, and that she thereupon became the rightful owner of said premises with the right to the use and possession thereof, and ever since the year 1922 Anna Belinak "has been and now is the owner of said premises."
It was further found that the insertion of the name of the husband as the grantee in the deed was not intended to be a gift by Anna Belinak to her husband and that the husband has at no time owned or claimed to own the premises or any interest therein. It was further found that the judgment, when docketed on February 13, 1937, attached to the interest of Charles Belinak in said premises, if at all, on March 19, 1937; that after the husband deeded the property to his wife in February, 1937, there was no property remaining in the name of the defendant Charles Belinak, on the records of Musselshell county, and that said levy of execution did not create a lien upon any property of the defendant Charles Belinak. It was further found that the transfer by the husband to the wife was not fraudulent or made to hinder, delay or defraud any of the husband's creditors but with the intent to transfer and place the legal title in Anna Belinak, the original purchaser and the true and lawful owner of the premises involved. Conclusions of law were made in accordance with the findings, and a further conclusion was made to the effect that plaintiff was not entitled to the relief prayed for nor to have the property of Anna Belinak subjected to execution of his judgment. Judgment was entered accordingly with costs allowed to defendants, whereupon the plaintiff appealed.
Twelve specifications of error are assigned which will be taken up in order. Specification No. 1 is on the alleged error of the court in finding that the sheriff levied the execution as directed in the praecipe and made no further investigation as to the assets of Charles Belinak. This question arose out of the necessity to show that the husband was bankrupt at the time the transfer was made by him to the wife. The evidence supports the finding that the sheriff or his deputy made the levy in accordance with the praecipe and did nothing more. We think that whether Charles Belinak had other property or not is of no importance in this action, for the reason that we will presently show that from and after the purchase of the property in 1922 the wife at all times had the equitable title thereto, and the legal title was transferred to her prior to levy of the execution.
Under specification 2 it is contended that the finding that Anna Belinak furnished the money to buy the property "is entirely unsupported by the evidence." To this we do not agree. Anna Belinak bought the property with funds taken out of a joint bank savings account, in which account her uncontradicted evidence shows that she had deposited $600 of her own separate funds; the transaction occurred in June 1922, and her husband had been out of the state for some two months at the time and did not return until a month or...
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Rogers v. Rogers
...his wife to deposit in her own name and to her credit alone. See: Bast v. Bast, 68 Mont. 69, 76, 217 P. 345; Shaw v. Shaw, supra; Kranjcec v. Belinak, supra. Kranjcec v. Belinak, supra, a wife withdrew money from the joint bank account of herself and husband with which she bought certain pr......