Lingenfelter v. Eby, 7375

• Decision Date: 18 February 1948
• Docket Number: 7375
• Citation: 68 Idaho 134,190 P.2d 130
• Parties: LINGENFELTER v. EBY et al. EBY et ux. v. LINGENFELTER et al
• Court: Idaho Supreme Court

190 P.2d 130

68 Idaho 134

LINGENFELTER v. EBY et al.

EBY et ux. v. LINGENFELTER et al

No. 7375

Supreme Court of Idaho

February 18, 1948

Appeal from District Court, Third Judicial District, Ada County Charles F. Koelsch, Judge.

Affirmed.

Hamer H. Budge and Dale Clemons, both of Boise, for appellant.

The failure of the court to make a finding on a material issue constitutes reversible error. I.C.A. 7-502; I.C.A. 7-302 and 7-303; Lorenzi v. Star Market Co., 19 Idaho 674, 115 P. 490, 35 L.R.A.,N.S., 1142; Carson v. Thews, 2 Idaho 176, 9 P. 605; First National Bank v Williams, 2 Idaho 670, 23 P. 552; Standley v Flint, 10 Idaho 629, 79 P. 815; Jensen v. Bumgarner, 25 Idaho 355, 137 P. 529; Bentley v. Kasiska, 49 Idaho 416, 288 P. 897; Cheesbrough v. Jensen, 62 Idaho 255, 109 P.2d 889.

W. B. Bowler, of Boise, for cross-defendant, Earl F. Eby.

Hawley & Hawley and Claude V. Marcus, all of Boise, for respondents.

The burden of proof rests upon the party who asserts property is separate property to show such fact by a preponderance of the evidence. Clifford v. Lake, 33 Idaho 77, 190 P. 714; Humbird Lumber Company v. Doran, 24 Idaho 507, 135 P. 66; Chaney v. Gauld Company, 28 Idaho 76, 152 P. 468.

Where conflicting evidence is submitted to a trial court, either as a court of law or as a court of equity, the findings of the court on questions of fact will not be disturbed where there is competent evidence to support them. Viel v. Summers, 35 Idaho 182, 209 P. 454; Davenport v. Burke, 30 Idaho 599, 167 P. 481; Lus v. Pecararo, 41 Idaho 425, 238 P. 1021; Collins v. Hibbard, 48 Idaho 178, 279 P. 619.

Holden, Justice. Givens, C. J., Miller and Hyatt, JJ., and Sutphen, District Judge, concur.

OPINION

Holden, Justice.

This is a suit to quiet title to an undivided two-ninths interest in and to certain real property located in Ada county, together with an undivided two-ninths interest in and to certain uncut diamonds.

It appears, to use the language of appellant, that "Eugene W. Eby and Anna M. Eby were married on June 24, 1890, in the State of Nebraska. They migrated to Idaho, and in 1908 bought the real property which is involved in this action." It further appears three children were born of this marriage, namely, Vivian (Eby) Lingenfelter, appellant herein, Waldo W. Eby, respondent, and Earl F. Eby, nominally a respondent. It also appears that following the purchase of the property Eugene W. Eby and Anna Eby built a house, barn and other buildings on the property and reared a family and continued to live on the property as their home until after the death of the mother, Anna M. Eby, April 1, 1937. Many years after the purchase of the real property, Eugene W. Eby and Anna M. Eby were arrested on a charge of violating the federal Prohibition Act, 27 U.S.C.A. § 1 et seq. Following their arrest and before conviction, the Ebys, November 4, 1929, for a recited consideration of one dollar, conveyed the real property so acquired by them to their son, Earl F. Eby. Both were convicted February 14, 1930, and given jail sentences, Eugene W. Eby twelve months and Anna M. Eby eight months. December 1, 1930, Earl F. Eby conveyed the property (excepting certain of the property theretofore conveyed by him by quitclaim deed to one A. H. Smith) to his mother, Anna M. Eby, one of his grantors, for a recited consideration of the sum of $ 1, no money, in fact, being paid.

Following the death of Anna M. Eby, Eugene W. Eby again married February 26, 1938. March 12, 1940, Eugene W. Eby filed a petition in the probate court of Ada county for the purpose of having the property in question adjudged to be and distributed to him as the community property of himself and his first wife, Anna M. Eby, then deceased. April 11, 1940, a decree adjudging the property to be community property and decreeing it as such to Eugene W. Eby was rendered and entered in that court. April 17, 1940, Stella Eby (the second wife) commenced a suit for divorce in the district court in and for Ada county against Eugene W. Eby, as well as to recover a money judgment. On the same day lis pendens was filed and recorded. Following the commencement of the suit for divorce, Waldo W. Eby wrote appellant and her husband and then called them by phone and, at the direction of appellant's husband, went to the court house and obtained certain papers; having done that, he took the papers to California and discussed the existing situation with appellant and her husband, after which appellant's husband prepared an affidavit for the signature of respondent, Waldo W. Eby, for later use in support of a motion to be filed in the said probate court in the Matter of the Estate of Anna M. Eby, Deceased, to set aside the decree theretofore rendered and entered as aforesaid, adjudging the property in question to be community property.

August 2, 1940, Waldo W. Eby filed in said probate court in said proceeding a motion to set aside the decree entered April 11, 1940, adjudging the property to be community property. Thereafter, August 24, 1940, Waldo signed the affidavit prepared by appellant's husband, as aforesaid, and then filed the same in said probate court, in said proceeding, in support of said motion. The affidavit, in so far as pertinent here, stated: "That said Eugene W. Eby, as surviving husband, was entitled only to his share and interest as a surviving husband in the separate property of the deceased wife, and that affiant [Waldo W. Eby] and his said brother [Earl F. Eby] and sister [Vivian Eby Lingenfelter] were entitled to such rights and interests in said property and estate as separate property and estate of said decedent [Anna M. Eby], as provided by law;" that affiant [Waldo W. Eby] "if said decree of distribution be set aside, intends to and will file in the above entitled proceeding [In the Matter of the Estate of Anna M. Eby, Deceased] a written opposition to said petition of said Eugene W. Eby, wherein and whereby affiant [Waldo W. Eby] will deny the allegations of said petition to the effect that said property and estate were or are community property and will allege that all thereof was and is the separate property of said decedent. * * *"

January 27, 1941, Homer Lingenfelter, an attorney practicing law at Marysville, California, and husband of appellant (who the record shows acted for appellant in various matters affecting the property in question prior to the commencement of this suit), wired respondent, Waldo Eby, that "if conveniently possible judgment [referring to the Stella Eby judgment, rendered and entered November 8, 1940] should be paid stop satisfactory for you to take deed yourself and Vivian's [referring to appellant] interest can be recognized when I contribute my part." Shortly thereafter, February 7, 1941, Waldo paid the sum of $ 1056.31 in full satisfaction of the judgment.

September 14, 1943, Homer Lingenfelter wrote respondent Waldo Eby and wife, among other things: "She [appellant] recognizes and I do that you have throughout the years carried the burden alone -- financially and personally, and have earned the right to make decisions and carry them out without a right of criticism from Vivian and certainly without any unsolicited directions from me."

There is ample oral and documentary evidence in the record supporting the above quoted statement to the effect that Waldo had carried the burden alone through the years, in this: That Waldo from time to time rendered substantial and very greatly needed assistance to the parents; that he paid taxes on the property at different times and that he also paid $ 812.58 to the Federal Land Bank, principal and interest, on its mortgage given by the parents on the property in question.

The record does not show either appellant or her husband ever contributed anything whatever toward the payment of the Stella Eby judgment.

This suit was commenced by Vivian Lingenfelter by the filing of a complaint January 21, 1946, in the district court for Ada county against Waldo W. Eby and Fern Eby, husband and wife, and Fern Eby, as the guardian of Earl F. Eby, an incompetent, to quiet her (appellant's) alleged title to an undivided two-ninths interest in the property. The cause was tried November 18, 1946, on an amended answer to appellant's complaint, and on the cross-complaint of respondents, Waldo W. Eby and Fern Eby, his wife, against plaintiff and appellant, and on the answer of Vivian Lingenfelter, plaintiff and appellant, to such cross-complaint, filed as aforesaid, to quiet the alleged title of said cross-complainants to the entire property. Claim of title is based upon a deed from Eugene W. Eby to respondent, Waldo W. Eby, conveying the property in controversy, but reserving a life estate, and on a later deed also made by said Eugene W. Eby conveying the remainder of the fee to respondent, Waldo W. Eby.

January 23, 1947, findings of fact and conclusions of law were made and filed and on the same day decree was rendered and entered in favor of defendants and cross-complainants and against appellant, quieting title to the entire property in question in them, from which an appeal was prosecuted to this court.

On this appeal it is contended the purpose of the conveyance from Eugene W. Eby and Anna Eby, his wife, to Earl F. Eby "seems to have been two-fold: First, for the purpose of defrauding creditors, and, second, for the purpose of securing the grantee for monies owing him by the grantors."

It is argued that "There can be no question as to the purpose of the grantors. Their purpose was fraudulent, and the law is well settled that a fraudulent conveyance vests both legal and equitable title in the grantee as between the parties, and can be objected to or set aside only by defrauded creditors."

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