McKay v. Barrick

• Decision Date: 12 March 1929
• Docket Number: 39299
• Citation: 224 N.W. 84,207 Iowa 1091
• Parties: MARY MCKAY, Appellee, v. NINA MAY BARRICK, Appellant, et al
• Court: Iowa Supreme Court

224 N.W. 84

207 Iowa 1091

MARY MCKAY, Appellee, v. NINA MAY BARRICK, Appellant, et al

No. 39299

Supreme Court of Iowa, Des Moines

March 12, 1929

Appeal from Hardin District Court.--SHERWOOD A. CLOCK, Judge.

Suit in equity originally to subject property to the payment of a judgment, and changed (though retained in equity) to one for damages for conspiracy to defraud plaintiff. Decree for plaintiff. Defendants appeal.

Reversed.

W. W White and Aymer D. Davis, for appellant.

Lundy & Bateson, for appellee.

MORLING J. ALBERT, C. J., and STEVENS, DE GRAFF, and WAGNER, JJ concur.

OPINION

MORLING, J.

Appellants move to strike from the record appellee's abstract and denial. Appellee by this abstract and denial denies the correctness of defendants' abstract of the testimony of the two defendants, and makes substitution therefor. The substituted testimony is set out at unnecessary length, but it omits part thereof shown in appellants' abstract. Appellants have not filed denial, nor have they caused to be certified to this court the record of the testimony in question. A transcript has been filed, but not of this testimony. The motion is overruled.

On the merits, the question argued is whether the plaintiff has made out a case for recovery. The record, as appellants have permitted it to stand, is very meager. It appears, however that defendants A. D. Barrick and Onie Barrick incurred an indebtedness to plaintiff, on which she recovered judgment for $ 4,334.26 and costs. After this indebtedness was incurred, the debtors acquired 18 acres of rural land in Hardin County, which they occupied as a home. Later, two acres were added. Defendant A. D. Barrick also owned some lots in Emmetsburg, which he had contracted to sell. Plaintiff commenced action against A. D. Barrick and Onie Barrick, to recover the amount owed her. Thereupon, in order to prevent the plaintiff from getting the Emmetsburg lots, or the money to be paid by the vendee for them, defendants A. D. Barrick and Onie conveyed the lots to their foster daughter, the defendant Nina May Barrick. A. D. Barrick and Onie Barrick had previously conveyed the Hardin County land to Nina May, the deed for which apparently was not recorded until about the time plaintiff brought the action which has been mentioned. The testimony of A. D. Barrick and Nina May Barrick is to the effect that $ 5,000, or $ 5,500, was received for the Emmetsburg lots, and that $ 1,000 of it was paid on a note of A. D. Barrick's, and $ 4,285.90 to A. D. Barrick. Nina May's testimony is that $ 4,000 was used to pay a mortgage on the Hardin County land, and that A. D. Barrick was owing her about $ 300. A. D. Barrick testifies that he deeded the Emmetsburg property to his daughter for the express purpose of preventing plaintiff from getting it; that, when the money came, he "was to pay his debts around town, and pay her $ 1,000 * * * She was to take the rest that was left and look after her mother, for doctor and that care of her, after I paid out what I had. * * * I didn't actually mean to keep it away from Miss McKay; I had my own debts I wanted her to pay. * * *" The Hardin County property is still owned by Nina May. Defendants offered in evidence the certificate of discharge of A. D. Barrick in bankruptcy, entered after the recovery of plaintiff's judgment. Execution against A. D. Barrick and Onie Barrick was returned unsatisfied. The court entered decree finding that defendants conspired for the unlawful purpose of putting the properties referred to out of plaintiff's reach and of defeating plaintiff's lien, and that the conveyances were without consideration; that by reason thereof plaintiff has been damaged "in a greater sum than the amount of plaintiff's judgment." Judgment was thereupon entered against Nina May Barrick for $ 5,541.66, with interest and costs. Defendants, therefore, find themselves in this predicament: Two of them owe plaintiff $ 4,334.26, for which plaintiff has a judgment against the two,--one discharged, however, in bankruptcy. Plaintiff further has a judgment against the...