Metz v. Blackburn

• Decision Date: 28 June 1901
• Parties: METZ, ET AL., v. BLACKBURN, ET AL
• Court: Wyoming Supreme Court

65 P. 857

9 Wyo. 481

METZ, ET AL., v. BLACKBURN, ET AL

Supreme Court of Wyoming

June 28, 1901

ERROR to the District Court, Sheridan County, HON. RICHARD H SCOTT, Judge of First District, presiding.

This was a suit to set aside a conveyance executed by one James Terrill to Mary B. Personette, who soon thereafter became Mrs. Terrill. The suit was instituted by certain creditors of Terrill. Subsequently, and after Terrill had answered in the case in opposition to the creditor's claims, Terrill filed a cross-petition seeking to avoid the same conveyance on the ground that fraud was practiced upon him by the grantee. Pending the suit, and after Terrill had filed his original answer, the lands involved were purchased by E. E Lonabaugh, for a valuable money consideration from Wilson B Personette, the son of Mrs. Terrill, to whom the land had been conveyed by Mrs. Terrill and husband, James, the latter being the original grantor. The consideration for the first conveyance to Mrs. Terrill, was her promise to marry him. Terrill claimed in his cross-petition that he was induced to make the conveyance to her by certain promises and representations made to him by her before the conveyance and marriage, and that the representations were false, and that she had failed to perform the promises. Metz obtained an interest in the premises from Lonabaugh. Metz was the attorney originally employed by Terrill to oppose the claims of the creditors, and he filed the answer for Terrill. Metz and Lonabaugh became parties to the suit on their own application. The district court held the conveyance to be void as to Terrill, and also as to his creditors.

Metz and Lonabaugh prosecuted error. The material facts, as well as the various points involved and the claims of the various parties, are more fully set out in the opinion.

Reversed.

Clark &amp Breckons, for plaintiffs in error.

It does not appear from the findings of fact that the conveyance from Terrill to Mary Personette was made with the intent on his part to hinder, delay, or defraud his creditors. On the contrary, the facts found, by fair implication, negative the existence of any such intent. The court does find as a fact that by means of false and fraudulent representations, Mary Personette, afterward Mary Terrill, induced James Terrill to convey his property to her. These facts might, perhaps, if the title were in Mary Terrill and the suit was against her only, justify a court in decreeing a reconveyance, because of the fraud practiced by her upon him. But these plaintiffs are not here seeking relief because of a fraud practiced upon their debtor, but solely upon the ground that their debtor had practiced a fraud upon them; viz., that he conveyed away his property with intent to hinder, delay, and defraud them out of the collection and enforcement of their just demands; and they can recover only upon the grounds alleged by them in their petition. It is an elementary rule of law that in all cases the allegations and proofs must agree. A party can no more succeed upon a case proved but not alleged than upon a case alleged but not proved. (Bump on Fraud. Conv., Sec. 576; Wait on Fraud. Conv., Sec. 182; Bachman v. Sepulveda, 39 Cal. 689; Bailey v. Ryder, 10 N.Y. 363; Tripp v. Vincent, 3 Barb. Ch., 613; Bank v. Root, 3 Paige Ch., 478; Vance v. Evans, 11 W.Va. 370; Foster v. Goddard, 66 U.S. 506; Harrison v. Nixon, 9 Pet., 483; Boone v. Chiles, 10 Pet., 177.)

But even if the plaintiffs had alleged and proved the fraud practiced upon James Terrill as the basis for the relief sought by them, it would have availed them nothing, because it is well settled as a proposition of law, that the fraud which will sustain the claim of a creditor to cancel and set aside a conveyance made by a debtor of his property must be the fraud of the debtor practiced and attempted by him, and not a fraud practiced and perpetrated upon him. (Bump on Fraud. Conv., Sec. 20; 14 Enc. L. (2d ed.), 266; 10 id., 333; Wait on Fraud. Conv., Sec. 403; Parker v. Roberts, 116 Mo. 657; Garretson v. Kane, 27 N. J. L., 208; McAlpine v. Sweetser, 76 Ind. 78; Hovey v. Holcomb, 11 Ill. 660; Graham v. R. Co., 102 U.S. 148; Griffin v. Stoddard, 12 Ala. 783; Crocker v. Bellangee, 6 Wis., 645; Petters v. Smith, 4 Rich. Eq., 197; Easton v. Perry, 29 Mo. 96; Lewis v. Rice, 61 Mich. 97; Colbern v. Robinson, 80 Mo. 541; Dougherty's Estate, 9 W. & S., 189; Lewis v. Rogers, 16 Pa. St., 18.)

It does not appear from the facts found by the court below that the conveyance from James and Mary Terrill to Wilson B. Personette was executed without consideration, or that it was executed in pursuance of any conspiracy between grantors and grantee, or that it was executed with the design or purpose of hindering or delaying or defrauding the creditors of James Terrill, or that it was from any cause or for any reason whatsoever, in the slightest degree, tainted with fraud.

Plaintiff's case, therefore, was not established. (8 Ency. of Pl. & Pr., 945; 2 Thomp. on Tr., Sec. 2694; Marks v. Sayward, 50 Cal. 58; Newby v. Meyers, 24 P. 971; Ry. Co. v. Owens, 50 P. 962; Metcalf v. Hart, 3 Wyo., 513; Ry. Co. v. Griffith, 38 P. 478; Monehout v. Barron, 42 Cal. 591; Perkins v. S. Nev. S. M. Co., 10 Nev. 405; Arnold v. Angell, 62 N.Y. 508; 12 Ency. of Pl. & Pr., 131; 11 Ency. of Pl. & Pr., 868, et seq.; Spoors v. Coen, 44 O. St., 497.)

If it be true, as alleged by the plaintiffs, that the conveyance to Wilson B. Personette was made by James Terrill and Mary Terrill for the purpose of hindering and delaying and defrauding James Terrill's creditors, in which unlawful purpose the grantee participated, then and in such case, there is no proposition of law more firmly established than that as between the grantors and grantee to that conveyance, it was absolutely good and valid, and the title conveyed to Personette absolutely unimpeachable, excepting only by the creditors of the grantor.

This being true, how can it be a fact, as found by the court, that Wilson B. Personette held the title to this property simply as a trustee for the use and benefit of his mother? If, on the other hand, it be true as found by the court, then how can it possibly be true as alleged by the plaintiffs that the conveyance was made for the purpose of defrauding the creditors of the grantors, in which purpose, both grantors and grantee participated? (Pittman v. Pittman, 107 N. C., 159; 1 Story Eq. Jur., Sec., 371; Waite Fraud. Conv., Sec. 171.)

There being, in the findings of fact, no fact in issue found which tends to affect the validity of the title acquired by Wilson B. Personette, through the deed to him from James Terrill and Mary Terrill, it follows as a matter of law that he could convey an unimpeachable title to Lonabaugh, his grantee, and that the title which Lonabaugh acquired by his deed was wholly unaffected by the fact found by the court, that at the time of the conveyance Lonabaugh and Metz had knowledge that Mary Terrill, one of the grantors in the deed to Wilson B. Personette, had obtained the deed of September 10, 1896, from James Terrill through fraud. (1 Story on Eq. Jur., Secs. 409, 410; 2 Pomeroy Eq. Jur., Sec. 754; Allison v. Hagan, 12 Nev. 39; Studebaker v. Langard, 79 Ind. , 320; Fulton v. Woodman, 54 Miss. 159; Evans v. Nealis, 69 Ind. 148.)

The rule is imperative that nothing will or can be supplied by intendment; that if the findings fail to show the existen e of a material and essential fact to the case of the party sustaining the burden of proof, a judgment in favor of such party cannot be upheld. (8 Ency. of Pl. & Pr., pages 933-943; 2 Thomp. on Tr., Secs. 2651, 2652, 2658; Elliott on App. Proc., Secs. 753, 754; Kehr v. Hall, 117 Ind. 405; Mitchell v. Brawley, 140 Ind. 216; Hays v. Hostetter, 125 Ind. 60; Freedom v. Norris, 128 Ind. 377.)

The findings of the court were not only not within the issues, but they are not sustained by the evidence, either as to the issues raised by plaintiffs, or Terrill as cross-petitioner. In a case like this, especially, the facts should be established beyond any reasonable controversy. (Lalone v. U.S. 164 U.S. 255; U. S. v. Am. Bell Tel. Co., 167 U.S. 224; U. S. v. Mng. Co., 128 U.S. 673; Kennedy v. Bldg. & Loan Asso., 57 S.W. 388; Howland v. Blake, 97 U.S. 624; Lavassar v. Washburne, 50 Wis. 200; McClellan v. Sandford, 26 Wis. 595; Kent v. Lasley, 24 Wis. 654; Harter v. Cristoph, 32 Wis. , 245-248; Ins. Co. v. Nelson, 103 U.S. 544; Smith v. Allis, 52 Wis. 337; Ford v. Osborne, 45 O. St., 1.)

There is no pretense that any one had personal knowledge of the transactions between Terrill and his wife, further than that he had conveyed his property to her, and married her. There is nothing in the testimony to charge Metz and Lonabaugh with notice of any equities of Terrill, even if he had any. A purchaser is not affected by vague rumors, hearsay statements, and the like, concerning prior and conflicting claims upon the property. (2 Pom. Eq., Secs. 597, 602; Raymond v. Flavel, 40 P. 158.) Had these purchasers known that the conveyance was void as against Terrill's creditors, if it were so in fact, still that knowledge would not charge them with notice of Terrill's equities as against his grantee. (Bump on Fraud. Conv., Sec. 492.) The fact that Metz had been employed by Terrill to defend the attachment suits, in no way changes the rule.

There is nothing in the claim of undue influence. The consideration for the conveyance was the grantee's promise to marry the grantor. The latter knew what he was doing, and what he was receiving in return. He acted with his eyes open. It may be that the marriage was brought about by selfish and mercenary inducements, and that there was an absence of pure and holy sentiments. It may be that there was an...