Leonard v. Green

• Decision Date: 20 June 1883
• Citation: 16 N.W. 399,30 Minn. 496
• Parties: Charles Leonard v. Nellie K. Green and Husband
• Court: Minnesota Supreme Court

16 N.W. 399

30 Minn. 496

Charles Leonard v. Nellie K. Green and Husband

Supreme Court of Minnesota

June 20, 1883

The complaint in this action, brought in the district court for Ramsey county, alleges that plaintiff is a judgment creditor of defendantJoseph C. Green, (husband of the other defendant,) that his judgment was docketed December 8, 1876 and that execution on the judgment has been returned unsatisfied; that after the docketing of the judgment several described pieces of land were conveyed to defendantNellie K. Green, for specified valuable considerations, by persons named; that for five years last past the defendant Joseph C. has been insolvent, and has conducted his real-estate business in the name of his wife, with intent thereby to prevent the collection of plaintiff's judgment and other debts, and to hinder, delay and defraud plaintiff and his other creditors; that defendant Joseph C. furnished and paid all the consideration for each of the conveyances before mentioned, and his wife furnished or paid no part of it, and that she has been knowing and privy to all his said fraudulent intent; that defendant Joseph C. purchased and paid the consideration for all said real property, and procured the conveyance thereof, with intent to place the title thereto in his wife's name, beyond the reach of legal process against him, and with the mutual understanding between them that she should hold such title upon a secret and fraudulent trust for him, and convey the same whenever he should dispose of it, and hold the proceeds for his use and benefit, and subject to his order, all which was done by them with intent on their part to cheat and defraud the plaintiff and other creditors of defendant Joseph C., and prevent them from collecting their demands by law; and that she still holds all such real estate as aforesaid and not otherwise.

The relief asked is (1) that the conveyances and each of them be adjudged fraudulent as against the creditors of Joseph C and as against the plaintiff; (2) that defendantNellie K Green be adjudged to hold said real property and the legal title thereto in trust to the extent necessary to satisfy the plaintiff's judgment; (3) that said real property, or so much thereof as may be necessary, be sold, and the proceeds applied in satisfaction of plaintiff's judgment, the costs of this suit, etc., and (4) for general relief.

The defendants, in separate answers, averred that defendantNellie K. Green herself furnished and paid all the consideration for each conveyance, and took all the property for her sole and separate use, and denied that Joseph C. purchased or paid for any of the property, or ever had any interest in it, and denied the mutual understanding and fraudulent intent and trust alleged in the complaint.

At the trial, before Simons, J., the plaintiff called as a witness the defendantNellie K. Green.On her husband's objection she was excluded as incompetent.The plaintiff then moved for a dismissal of the action as against the defendant Joseph C., and to strike his name from the pleadings and record, and to amend the prayer of the complaint so as to ask for a sale of the interest of defendant Nellie K. in the property, subject to the rights of her husband, "and made such motion for the avowed purpose of thereby rendering said defendantNellie K. Green a competent witness on the part of the plaintiff."To this the defendants severally objected "on the ground that the same was incompetent, irrelevant, immaterial and not proper, and because such change in the record would not make said Nellie K. Green a competent witness in this case without the consent of her husband.Said objection was sustained by the court, and to such ruling said plaintiff duly excepted."The settled case in which the grounds of objection are thus set forth does not state on what ground the ruling was based.The plaintiff thereupon rested his case, and on defendants' motion the court dismissed the action.

On plaintiff's motion a new trial was granted.Appended to the order granting a new trial is a note by the judge, in which it is stated that the motion made by plaintiff at the trial "was denied upon the ground that said defendantJ. C. Green, being the judgment debtor, was a necessary party.Upon further consideration I think this was erroneous.* * * In furtherance of justice, the name of the defendantJoseph C. Green should have been stricken out of the case, and the motion for a new trial must be granted."The defendants appeal from the order granting a new trial.

Order affirmed.

McMillan & Beals, for appellants.

The ground on which the order appealed from was made was error of law occurring at the trial.No error occurred at the trial.The judgment debtor is a proper, if not necessary, party in an action of this nature.North v. Bradway,9 Minn 169, ...