Leonard v. Green

• Decision Date: 30 September 1885
• Parties: CHARLES LEONARD <I>vs.</I> NELLIE K. GREEN.
• Court: Minnesota Supreme Court

34 Minn. 137

CHARLES LEONARD vs. NELLIE K. GREEN.

Supreme Court of Minnesota.

September 30, 1885.

Appeal by defendant from an order of the district court for Ramsey county refusing a new trial, — the action having been tried before Brill, J., without a jury. The decision on a former appeal in this action is reported in 30 Minn. 496.

McMillan & Beals, for appellant.

Warner, Stevens & Lawrence, for respondent.

VANDERBURGH, J.¹

The plaintiff is the owner of a judgment recovered by himself and another against Joseph C. Green, husband of the defendant, on the eighth day of December, 1876, growing out of an indebtedness existing in 1874. The judgment debtor has since been insolvent, and an execution issued upon such judgment has been duly returned unsatisfied. This action is brought to enforce a trust in favor of creditors, arising under Gen. St. 1878, c. 43, § 8, in certain real property in the city of St. Paul, alleged to have been purchased and paid for by Joseph C. Green, but at his instance conveyed to the defendant, his wife, with the intent to place the same beyond the reach of legal process, and to defraud his creditors.

1. The judgment debtor, Joseph C. Green, was originally joined as a defendant; but, on the trial, upon plaintiff's application, leave was given, against the objection of the defendant, to strike out his name as a party defendant in the action. It is the usual, and I think the better, practice to join the judgment debtor in such cases. He is a proper, though not a necessary, party; the action being to subject a parcel of land in which he has no interest to the payment of a judgment against him. No substantial right of the defendant was affected by the action of the court. And this court will not interfere with the discretionary order of the trial court in granting or refusing such application. This was expressly so ruled on the former appeal in this case. 30 Minn. 496. See, also, Campbell v. Jones, 25 Minn. 155; Wait, Fraud. Conv. § 129. Any contingent interest which he might have in real estate of his wife by virtue of the marital relation would not be affected, nor need he be joined because of such interest. It is not deemed necessary, nor is it usual in practice, to join the husband or wife of an alleged trustee in a suit by a creditor to reach the trust estate in such cases.

2. Plaintiff's case is certainly no weaker from the fact that he alleges, and the court expressly finds, that the conveyance was caused to be made to the defendant with the intent to hinder, delay, and defraud the creditors of her husband. If the finding is true, it would still cover the case provided for by the statute declaring a trust in favor of creditors. It would also preclude the idea of any advancement or bona fide payment to or provision for the wife. Wood v. Robinson, 22 N. Y. 564.

3. It is alleged and found that Chadwick, the vendor of the premises in question, for the consideration of $1,600, granted and conveyed the same to the defendant on the 24th day of February, 1882; while it appears from the evidence that the transaction was not completed by the payment of the consideration and delivery of the deed till about 30 days later, and that, as a part of the consideration, Green agreed to assume a mortgage of $600, which he afterwards paid. The point is made that the plaintiff is concluded by the finding in respect to the date of the conveyance, and that the evidence, therefore, shows that the money was not paid till after the sale was completed. The finding might have been corrected and made more definite in respect to these matters if the defendant had asked it; (Bradbury v. Bedbury, 31 Minn. 163;) but as it stands, it will be presumed therefrom that it was a cash sale, and that the conveyance was made upon the payment of the consideration, and not afterwards. But the error in referring the completion of the transaction to the date of the deed, instead of the time of its delivery, is entirely immaterial, and works no prejudice to any one.

4. The evidence in plaintiff's behalf tended to prove that the contract for the purchase of the land was made by Joseph C. Green in person, through an agent of the grantor who was absent from the state; but at the request of Green the name of ...