Lumpkins v. McPhee

• Decision Date: 31 May 1955
• Docket Number: No. 5876,5876
• Citation: 286 P.2d 299,1955 NMSC 52,59 N.M. 442
• Parties: William D. LUMPKINS, Appellee, v. Jackie McPHEE and Jessie Angier, Appellants.
• Court: New Mexico Supreme Court

Page 299

286 P.2d 299

59 N.M. 442

William D. LUMPKINS, Appellee, v. Jackie McPHEE and Jessie Angier, Appellants.

No. 5876.

Supreme Court of New Mexico.

May 31, 1955.

Rehearing Denied Aug. 16, 1955.

Dean Zinn, Santa Fe, for appellants.

Harry L. Bigbee, Donnan Stephenson, Santa Fe, for appellee.

SADLER, Justice.

The defendant, Angier, has appealed from a judgment of the district court of Santa Fe County awarding plaintiff a lien upon certain real estate, which she had purchased from her daughter, to secure a judgment recovered by plaintiff against the daughter in the amount of $2,000. The award of the lien rests on a finding by the trial court that the deed from the daughter to the mother was made with intent to hinder, delay and defraud plaintiff of his judgment. Incidentally, ownership of the lien mentioned is now in Janette Chalk, formerly Janette Lumpkins, the parties having stipulated that the cause shall proceed in the name of original plaintiff as though still holder of the lien.

The cause was tried before the court without a jury and resulted in the adoption of certain findings of fact and conclusions of law incorporated in the trial court's decision, the substance of which will be recited. Speaking as of the date of the judgment Jackie McPhee, the daughter, was a resident of California and her mother, Jessie Angier, a resident of Texas. On July 18, 1951, the plaintiff recovered judgment against defendant McPhee in the sum of $2,000 in a certain suit then pending in the district court of Santa Fe County entitled 'William D. Lumpkins, Plaintiff, v. Jackie McPhee, Defendant,' numbered 24,083 on the civil docket of said court.

Thereafter on July 30, 1951, execution was issued upon the judgment mentioned and was in due course returned nulla bona. Prior thereto and on January 27, 1951, the defendant McPhee had executed a warranty deed to her mother, the defendant Angier, conveying to her lots 22, 23 and 24 situated on the south side of west Santa Fe Avenue in the West Santa Fe Avenue Subdivision, as shown on the plat of survey made by Walter G. Turley on August 24, 1948, and filed of record in the office of the county clerk of Santa Fe County on August 26, 1948. Two days later, on January 29, 1951, the deed just mentioned was filed for record with the county clerk of Santa Fe County and duly recorded.

Thereafter on May 21, 1953, the plaintiff assigned all interest in the judgment to his former wife, Janette Chalk, the parties stipulating that no question should ever be raised concerning who was the real party in interest by reason of the fact that the cause would continue in the name of original plaintiff, although any recovery would be held in trust by him for the said Janette Chalk.

The consideration for the deed mentioned above was the sum of $4,000 which Mrs. Angier was to pay to her daughter, defendant McPhee, as the purchase price for said real estate over an unspecified period of time and in unspecified installments. No written contract or other memorandum nor any note or mortgage, was prepared or signed by either of the parties to said real estate transfer, nor were documentary stamps attached, thus reflecting a departure from usual business routine and practice regarding conveyances. Mrs. Angier, mother of grantor in said deed, was generally familiar with her daughter's transactions and condition.

Although the warranty deed mentioned was made prior to entry of judgment in said cause No. 24,083 in which plaintiff recovered judgment against defendant McPhee as aforesaid, the latter was indebted at the time to the plaintiff who was making demands for the payment of the debt and threatening litigation. The conveyance was made by the defendant McPhee in anticipation of the enforcement of plaintiff's claim. The claim being asserted by plaintiff against defendant McPhee at the time of the execution of the latter's conveyance of said real estate to her mother was subsequently reduced to judgment in cause No. 24,083 and arose out of the same transaction.

The real estate conveyed by the daughter to the mother comprised all of the daughter's property within New Mexico or elsewhere and the conveyance was made by her in contemplation of insolvency and rendered her insolvent with respect to her assets in New Mexico or elsewhere. The conveyance of said property from the daughter to the mother was entered into by the daughter for the purpose and with the intent of hindering, delaying and defrauding her creditors, including the plaintiffs, and prevented him from obtaining his lawful demands.

The action out of which this judgment grew was filed August 20, 1951. A lis pendens in connection with said action was recorded the same day with the county clerk of Santa Fe County. On September 5, 1951, a writ of attachment was issued and a levy of same made on the real estate involved on October 1, 1951. The attachment mentioned was subsequently dissolved by order of court on October 3, 1952. In the meantime, the plaintiff caused to be published in the Santa Fe New Mexican, a daily newspaper published at Santa Fe, a notice of suit in connection with the institution of said action and the notice having been observed by A. R. Angier, a son of defendant Angier and a brother of defendant McPhee, the son called his mother in Texas by long distance about October 22, 1951, read her the notice and mailed her a copy thereof to her usual address in Texas which she duly received.

Mrs. Angier, one of the defendants, paid her daughter as the full purchase price of the real estate mentioned on dates and in amounts as follows, to-wit:

                June 30, 1951       $  100.00
                August 6, 1951         100.00
                August 8, 1951         709.90
                August 11, 1951        100.00
                September 28, 1951   1,000.00
                February 27, 1952      250.00
                March 24, 1952         250.00
                December 26, 1952      300.00
                December 27, 1952      700.00
                February 19, 1953      500.00
                

The trial court concluded its findings of fact being findings numbered 15 and 16 and adopted its conclusions of law 1 to 6, in the following language, to-wit:

'15. The defendant Angier, by being informed of the fact that she had been sued in this action, of the nature and objects of this action, and of the levy of attachment which said information came to her knowledge on or about October 22, 1951, at which time only $2,009.90 of the purchase price had been paid by her, acquired knowledge of the Defendant McPhee's fraud, or thereby acquired knowledge of facts so suggestive of fraud as to put her on inquiry, which, had it been pursued in a reasonably prudent manner, would have culminated in her acquisition of actual knowledge of Defendant McPhee's fraud.

'16. Defendant Angier failed, neglected or refused to ever make any inquiry whatsoever as to the bona fides of the conveyance, the rights of plaintiff, the purposes and intent of Defendant McPhee, or as to any matter hereto material.

'Conclusions of Law

'1. The Court has jurisdiction of the parties and the subject matter of the action.

'2. Defendant Angier is not a bona fide purchaser for value without notice of plaintiff's rights with respect to sums paid by her to the Defendant McPhee on the purchase price of the realty involved subsequent to on or about October 22, 1951, when she acquired knowledge of Defendant McPhee's fraud or was placed upon inquiry as to the bona fides of the transaction, but made no inquiry.

'3. From and after on or about the 22nd day of October, 1951, Defendant Angier's payments on the purchase price of said realty were constructively fraudulent as to the rights of the plaintiff.

'4. The plaintiff should be adjudged and decreed to have and own a lien upon the real estate involved herein to the extent of $2,000.00.

'5. The plaintiff should be awarded his costs of suit as against the Defendant McPhee.

'6. If the Plaintiff's lien aforesaid is not paid within a period of ninety days from the entry of judgment herein, then the plaintiff should be permitted to proceed to foreclose his lien in the same manner as other liens upon realty may be foreclosed as presently provided by law.'

The foregoing recitation of findings and conclusions presents a fair summary of the facts found and conclusions drawn upon which the trial court based its judgment. It adjudged to the plaintiff a lien on the lots and parcels of real estate in the city of Santa Fe to secure the amount of plaintiff's judgment theretofore recovered against Jackie McPhee as aforesaid. There can be no question but that the findings and conclusions adopted by the trial court support the judgment rendered. Our concern over the facts is, then, not upon that score but rather whether the facts in evidence support the findings made and to the extent they do not, whether different conclusions are proper on the true facts.

The plaintiff insists that because defendants moved to dismiss when plaintiff rested and, following a denial of the motion, introduced evidence and failed to renew their motion when the case ended, they have waived error in the trial court's action on the motion. Perhaps so and we have so held but this does not mean they have waived a challange to sufficiency of the evidence to support the findings. The trial court's refusal of defendants' requested findings suffices to reserve this claim of error.

It is important to fix in our minds certain dates, some of which have been mentioned above, when we begin consideration of sufficiency of the evidence to sustain a finding that the deed from the daughter to the mother was made with a fraudulent intent to hinder, delay and defraud creditors, especially the plaintiff. As already stated, Mrs. McPhee, the daughter, acquired this property at some unfixed date subsequent to 1949. It was conveyed to Mrs. Angier, her mother, by warranty deed on January 27, 1951 which, two days later, was filed for record with the county clerk of Santa Fe County. The suit out of which plaintiff's judgment arose was filed on April...