Mickle v. Walraven

• Decision Date: 26 October 1894
• Citation: 60 N.W. 633,92 Iowa 423
• Parties: MICKLE v. WALRAVEN ET AL.
• Court: Iowa Supreme Court

92 Iowa 423

60 N.W. 633

MICKLE

v.WALRAVEN ET AL.

Supreme Court of Iowa.

Oct. 26, 1894.

Appeal from district court, Clinton county; P. B. Wolfe, Judge.

Suit by creditors' bill to set aside certain conveyances of real and personal property, alleged to be in fraud of creditors. Decree dismissing plaintiff's petition, and he appeals. Affirmed.J. Stine, for appellant.

W. A. Cotton, for appellees.

DEEMER, J.

1. John Walraven and Mary C. Walraven are husband and wife; the other defendants are their sons. In the year 1873, and for some years prior thereto, they lived together as one family, in Clinton county, Iowa. In the early 70's defendant John Walraven failed in business, and among his creditors was the plaintiff. Plaintiff obtained judgment against John Walraven on his claim in the district court of Clinton county on the 5th day of September, 1891. He procured an execution to issue on this judgment, which was returned “No property found” before the commencement of this suit. In his petition plaintiff alleged that on the 1st of January, 1891, John Walraven was the owner of some land in Clinton county, but that before plaintiff obtained his judgment, and before the commencement of this suit, said defendant caused the land to be conveyed to his wife, Mary C. Walraven, for the purpose of hindering, delaying, and defrauding his creditors. He further alleged that at the same time John Walraven was the owner of 40 head of horses, which he conveyed to his son H. J. Walraven with like intent; and that he was also the owner of 75 head of cattle, which he conveyed to his son William F. Walraven for the same purpose. Plaintiff further averred that about December 10, 1891, defendant John Walraven conveyed to his wife 20 head of horses, and that his wife, pretending to be the owner thereof, caused her son William F. to remove all the said horses to Calhoun county, where they now remain. He also alleged that about March 5, 1892, John Walraven purchased some land in Calhoun county, Iowa, and caused the same to be conveyed, by warranty deed, to his wife, Mary C. Walraven, and on or about March 7, 1892, she conveyed the same to her son William F. Walraven, who now holds the same; that at the same time he purchased another tract of land in Calhoun county, and caused the same to be conveyed to William F. Walraven, who now holds the same; that about October 27, 1892, he purchased some town lots in the village of Wheatland, in Clinton county, and caused the same to be conveyed to his wife, who now holds the same; and that on December 3, 1892, he purchased another lot of town lots in the same place, and caused them to be deeded to his wife, who still holds the title; that some time in January, 1893, defendant William F. Walraven conveyed some of the Calhoun county land deeded to him to his brother Parker C. Walraven, who is also made a party defendant to this suit. He further alleged that each and all of these conveyances of real and personal property were without consideration, fraudulent, and void, and made with intent to hinder, delay, and defraud the creditors of John Walraven; and he asks to have these conveyances set aside, and the lands and personal property decreed to be the property of John Walraven, and be held subject to his (plaintiff's) judgment. The answer of each of the defendants is in effect a general denial of the allegations of the petition. They further allege that as the conveyances of the Clinton county land were made more than five years prior to the institution of this suit, the action is barred by the statute of limitations. On the issues thus joined the court rendered a decree dismissing the plaintiff's petition, and he appeals. The testimony in the case with reference to the Clinton county land, which is furnished largely by the defendants themselves, rests almost wholly in the memory of witnesses as to transactions occurring nearly, if not quite, 20 years ago. It is not, therefore, very clear or satisfactory. From a careful reading of it, we are led to believe that the following are the material facts in the case: At the time John Walraven failed in business his wife was possessed of some personal property and some town lots which she claimed in her own right. With this, or the proceeds of it, she made a partial payment on 240 acres of the Clinton county land in controversy, which she, or rather her husband, purchased for her of one Graham in the year 1873. The deed to the land was recorded in July of that year. Afterwards, and in the year 1882, she claims to have purchased 200 acres more land, adjoining that purchased of Graham, from the Iowa Land Company; and during the years 1873 to 1884, inclusive, she claims to have purchased other small tracts of land adjoining the Graham tract, until now she has in her own name, in Clinton county, more than 600 acres of land, lying in one body. Her husband, John Walraven, had a power of attorney from her, executed in June, 1873, authorizing him to lease real estate for her use, and to lease real estate belonging to her to other parties. About the time of the purchase of the Graham tract there was leased in her name about 1,000 acres of land adjoining the Graham tract, which, with it, was used for pasturage purposes. At different times during the years 1870 to 1875, inclusive, she borrowed of her son P. C. Walraven money earned by him as deputy postmaster at Wheatland, where these parties lived. The amount so borrowed was agreed upon between them in November, 1886, to be $3,586.25, and Mrs. Walraven gave her son P. C. her note for that amount. Defendant Mary C. Walraven claims that she paid the purchase price for all this land, and made the improvements thereon, with the money borrowed from her son as before stated, and the earnings and profits arising from the use of the land. It is shown that during all this time her husband was managing the land, and that he conducted nearly all the negotiations resulting in the purchase of it. Defendants claim that in so doing he was acting as the agent of Mary C. Walraven, receiving just such amounts as she chose to pay, which he used for his support and to pay debts he had contracted before his failure; that Mary C. Walraven in fact purchased all the land, and is the absolute owner thereof. While, on the other hand, plaintiff insists that these transactions were all fictitious and fraudulent; that the title to the land was taken in the name of Mary C. Walraven pursuant to a conspiracy between herself and husband to defraud his creditors; that these conveyances were a scheme and device to aid John Walraven in covering up his earnings, and keeping them from his creditors, and that the whole transaction was colorable and covinous.

In the view we take of the case, it is not necessary to determine which of these contentions is correct. The first of these conveyances was made in 1873, and the last in 1884. Nearly all of the land was obtained prior to 1882,--in fact all of it but 20 acres,--and the deeds for it were recorded practically as soon as made. This action was commenced on December 3, 1891, more than 10 years after the deeds to most of the land had been executed and recorded. Plaintiff's judgment was obtained September 5, 1891, but the debt on which the judgment was rendered was created prior to 1873. The exact time, however, is not shown, but it was prior to the time any of the conveyances in question were executed. Now, our statutes of limitation provide that “actions for relief on the ground of fraud in cases heretofore solely cognizable in a court of chancery, and all other actions not otherwise provided for in this respect,” shall be brought within five years after their causes accrue, and not afterwards, except when otherwise specially declared. Code, § 2529. Code, § 2530: “In actions for relief on the ground of fraud and of mistake * * * the cause of action shall not be deemed to have accrued, until the fraud or mistake shall have been discovered by the party aggrieved.” This case was one heretofore solely cognizable in a court of chancery, and therefore comes within the provisions of the statute before quoted; and it is claimed that the action is barred within five years after the discovery of the alleged fraud. It has frequently been held by this court that the record of a deed is notice to the world of its contents, and that, where a deed which is fraudulent as against creditors is spread upon the public records, notice to the world is given of its character, or at least sufficient information is conveyed thereby, in the absence of special circumstances, to put creditors upon inquiry as to its contents and character. Gebhard v. Sattler, 40 Iowa, 152;Bishop v. Knowles, 53 Iowa, 268, 5 N. W. 139;Garden v. Cole, 21 Iowa, 205;Hawley v. Page, 77 Iowa, 239, 42 N. W. 193;Laird v. Kilbourne, 70 Iowa, 83, 30 N. W. 9;Francis v. Wallace, 77 Iowa, 373, 42 N. W. 323. Following these cases, we must hold that plaintiff discovered the fraud in these conveyances at the time they were recorded. At the time of the discovery of the fraud, however, plaintiff's right of action had not accrued. Before he could institute his action to subject the land to the payment of his claim, he must have had a lien upon it either by attachment or judgment. Clark v. Raymond (Iowa) 50 N. W. 1068;Faivre v. Gillan (Iowa) 51 N. W. 46;Gwyer v. Figgins, 37 Iowa, 517; Gordon v. Worthley, 48 Iowa, 29; Pearson v. Maxfield, 51 Iowa, 76, 50 N. W. 77;Miller v. Dayton, 47 Iowa, 312;Taylor v. Branscombe, 74 Iowa, 534, 38 N. W. 400. As plaintiff's cause of action did not accrue until he obtained his judgment on September 15, 1891, the statute did not begin to run until that time, although he had knowledge of the fraud, which he complains was perpetrated nearly 18 years before; and as he commenced this suit within a few months after he recovered his judgment, the action, strictly speaking, is not barred. That is the holding in other states under...