Mills v. Ward

• Decision Date: 08 January 1897
• Citation: 6 N.D. 317,70 N.W. 271
• Parties: DAISY ROLLER MILLS et al. v. WARD et al.
• Court: North Dakota Supreme Court

6 N.D. 317

70 N.W. 271

DAISY ROLLER MILLS et al.

v.WARD et al.¹

Supreme Court of North Dakota.

Jan. 8, 1897.

Syllabus by the Court.

1. In an action brought by judgment creditors of the grantors to set aside conveyances of real estate as fraudulent and void, and in which no accounting for rents and profits is asked, it is not necessary to bring in as a party defendant a receiver of the rents and profits of said real estate, appointed long after the conveyances were made, and in an action to which none of the plaintiffs in this action were parties.

2. Under section 5110, Comp. Laws, where, after judgment is rendered, the judgment creditor dies, execution may properly be issued upon the judgment by the representatives of the deceased, and in his name. Formal proceedings reviving the judgment in the name of the representatives are not now necessary.

3. Following the ruling of this court upon practically the same evidence in Paulson v. Ward, 58 N. W. 792, 4 N. D. 100, it is held that the conveyances here attacked were executed and received for the purpose of defrauding the creditors of the grantors, and are, as against these plaintiffs, void.

4. Where, in an action by creditors of the grantors to set aside conveyances of real estate as fraudulent and void, it is shown that the conveyances were executed and received for the purpose of defrauding any creditor of the grantors, then, under section 5052, Rev. Codes, such conveyances are fraudulent as to all creditors of the grantors.

5. Where, at the time of the execution of the conveyances of real estate made and received for the purpose of defrauding the creditors of the grantors, the grantee, as a part of the same transaction, agrees with the grantors to pay off certain existing valid incumbrances upon the real estate so fraudulently conveyed, and subsequently, and in pursuance of such agreement, the grantee pays such incumbrances, he cannot, when such conveyances are declared fraudulent and void as against the creditors of the grantors, hold such conveyances as security for the amounts so paid.

6. But where, at the suit of one judgment creditor of the grantors, such conveyances are declared fraudulent and void, and the lien of the judgments of such creditor are declared superior to any claim of the grantee under such conveyances, and thereafter such grantee purchases such judgments, and has them assigned to a trustee for his benefit, in such case, when another action is brought by other judgment creditors of the grantors to set aside the same conveyances, and a decree to that effect is obtained, and the land ordered sold upon executions issued upon the latter judgments, the grantee is entitled to have a provision in such decree declaring the liens of the judgments so purchased and held by him, through his trustee, senior and superior to the liens of any of the judgments held by the plaintiffs in the second action.

Appeal from district court, Traill county; William B. McConnell, Judge.

Action by the Daisy Roller Mills and others against George A. Ward and others to set aside fraudulent conveyances. From a decree for plaintiffs, defendants appeal. Modified.M. A. Hildreth, for appellants. Carmody & Leslie, for respondents.

BARTHOLOMEW, J.

The plaintiffs in this case are the Daisy Roller Mills, a corporation; the McCormick Harvester Machine Company, a corporation; J. W. Griggs and E. W. Dyke, copartners under the firm name of J. W. Griggs & Co.; Helen E. Thomson, as executrix of the estate of Milton H. Thomson, deceased; Cornelia M. Arnold, as administratrix of the estate of Reuben Cole, deceased; Lizzie J. Anderson; and Mabel H. Frances and Harry M. Frances, by Lizzie J. Anderson, their guardian. The defendants are George A. Ward and Jessie S. Ward, husband and wife; H. H. Hall, a son of Jessie S. Ward by a former marriage; Daniel Patterson; and Benjamin Cameron. On December 20, 1888, George A. Ward and Jessie S. Ward, by warranty deed, conveyed to Daniel Patterson about 1,000 acres of land in Traill county. On the same day, H. H. Hall conveyed to Patterson, by warranty deed, 320 acres of land in said county. The plaintiffs are, each and all, judgment creditors of the Wards and Hall. The debts upon which their respective judgments are based existed prior to the date of such conveyances, but the judgments have been obtained since that date. The plaintiffs claim that executions were regularly issued upon their respective judgments, and levied upon the real estate described in said conveyances, as the property of the Wards and Hall, and that further proceedings under such executions are held in abeyance until the powers of a court of equity can be invoked to brush aside such conveyances, which are alleged to be fraudulent and void as against the creditors of the Wards and Hall. As we understand the records, the Wards and Hall make no defense. Patterson and Cameron defended, and, the decision of the trial court being against them, they bring the case to this court for trial de novo, upon a statement of the case embodying all the testimony offered, and all the proceedings had, in the lower court. These same conveyances were before us in the case of Paulson v. Ward, 4 N. D. 100, 58 N. W. 792. In that case, Paulson & Co., judgment creditors of the Wards and Hall, attacked said conveyances as fraudulent and void as to them, and this court affirmed a decree of the district court so declaring. After such affirmance, Patterson purchased the Paulson judgments at their full face value, and had them assigned to Cameron, in trust for Patterson. It is for this reason that Cameron appears as a defendant herein. He is not otherwise interested in the transaction.

In 1894, in some litigation between the Wards and Hall, on the one part, and Patterson, on the other, a receiver was appointed for the rents and profits of the lands described in the conveyances here in controversy. Defendant Patterson, in his answer herein, and in open court, asked that such receiver be brought in as a party defendant in this case. This the trial court refused, and the point is urged here. But we are unable to see in what manner such receiver is a necessary or even proper party to this litigation. No accounting for rents and profits is asked as against Patterson for any time since such conveyances were made. The sole question here is the validity or invalidity of those conveyances of December 20, 1888, made nearly six years before the receiver was appointed, and with which he was in no manner connected. He is clearly not a necessary party at this stage of the litigation.

The answer of defendant Patterson attempted to raise an issue as to the representative capacity of the plaintiffs, Helen E. Thomson, as executrix, Cornelia M. Arnold, as administratrix, and Lizzie J. Anderson, as guardian. The records and proceedings of the county court were introduced to show their appointment and qualification, respectively. It is urged here that this evidence is insufficient. We are not pointed to the particulars wherein it is defective, nor have we been able to discover them. Moreover, this much is certain: The parties were appointed by the proper court. They qualified, and entered upon the discharge of their respective duties. Under these circumstances, the legality of their appointment cannot be collaterally attacked. Succession of Dougart, 30 La. Ann. 268;Menage v. Jones, 40 Minn. 254, 41 N. W. 972;White v. Weather-bee, 126 Mass. 450.

Another preliminary question is raised as against the claims represented by Helen E. Thomson, executrix, and Cornelia M. Arnold, administratrix. The judgments in these cases were procured in the lifetime of the decedents, and in their names, and the executions in aid of which this action was brought, and which were issued after the decease of the original judgment creditors, were issued in their names, no proceedings having been had, by scire facias or otherwise, to revive the judgments in favor of the representatives.

It is urged that an execution issued in favor of a judgment plaintiff then deceased is void; that the death of a judgment creditor suspends the right to issue execution until, by proper proceedings, the judgment is revived in favor of his representatives. No doubt that such was the case at common law. See Freem. Ex'ns, §§ 35, 36, where the matter is fully discussed, and authorities cited. But section 5110, Comp. Laws, in force when this action was begun, reads as follows: “The party in whose favor judgment has heretofore been, or shall hereafter be given, and, in case of his death, his personal representatives, duly appointed, may, at any time within five years after the entry of judgment, proceed to enforce the same by writ of execution, as provided in this chapter.” No provisions are contained in the chapter for reviving the judgment or substituting parties. Under statutes similar to this, it has frequently been held that no revivor or substitution was necessary. 4 Wait, Prac. 7. In some cases the statute requires the name of the party in whose interest the writ issues to be indorsed on the execution. Duryee v. Botsford, 24 Hun, 317; Meek v. Bunker, 33 Iowa, 169. In other cases the writ is permitted to issue in the name of the representative. Gaston v. White, 46 Mo. 486. This is matter of detail. Our statutes are silent on the point. They simply declare that personal representatives of the deceased, duly appointed, may proceed to enforce the judgment by execution. We think it was the legislative purpose to permit the writ to issue in the name of the original parties to the judgment in cases of this character.

We need not in this case discuss the detail testimony upon which fraud is predicated. All the testimony introduced in the case of Paulson v. Ward, supra, was introduced in this case. In the former case we discussed the testimony at length, and announced what facts we deemed proven. We need not recapitulate them. From the proven facts in that...