National Bank of Anaconda v. Yegen
| Decision Date | 09 November 1928 |
| Docket Number | 6334. |
| Citation | 271 P. 612,83 Mont. 265 |
| Parties | NATIONAL BANK OF ANACONDA v. YEGEN et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Yellowstone County; O. F. Goddard Judge.
Action by the National Bank of Anaconda against Laura B. Yegen and another. Judgment for defendants, and plaintiff appeals. Remanded, with direction to modify judgment in accordance with opinion.
Johnston Coleman & Johnston, of Billings, for appellant.
Hurd Hall & McCabe, of Great Falls, for respondents.
This action was brought for the purpose of having set aside a conveyance of certain real property made by the defendant Laura B. Yegen to her daughter, Virginia Yegen (now Virginia Yegen O'Meara), on March 4, 1924, and to subject the same to the satisfaction of a judgment for $8,230.72 and interest thereon, rendered against the defendant Laura B. Yegen and in favor of the plaintiff on December 30, 1924. The lands involved consist of four separate parcels:
(1) A tract of about 20 acres, described by metes and bounds and designated as the westerly half of lot 6 in section 2, township 1 south, range 26 east.
(2) An undivided interest in the north half of the southwest quarter, the west half of the southeast quarter of the southwest quarter, and lot 5 of section 2, township 1 south, range 26 east.
(3) All of block 14 of the Highland addition to the city of Billings.
(4) Lots 13, 14, and 15 in block 139 of the original town of Billings.
The complaint alleges that on November 25, 1924, the plaintiff commenced its action against the defendant Laura B. Yegen in the district court of Deer Lodge county to recover judgment on a promissory note given by her to the predecessor in interest of plaintiff on December 10, 1923, for the sum of $7,450, payable six months after date, with interest at 6 per cent. per annum, which had been duly assigned to it, and that such proceedings were had in said action that on December 30, 1924, a judgment of said court was duly given and made in favor of the plaintiff and against the defendant therein for the sum of $8,230.72, which was duly docketed by the clerk of the court, that the plaintiff is the owner of said judgment, and that no part of the same has been paid.
It is further alleged that on March 4, 1924, and for a long time prior thereto, the predecessor in interest of the plaintiff was the owner and holder of said promissory note, and that the defendant Laura B. Yegen was then indebted to plaintiff on account of said promissory note, and that while she was so indebted to the predecessor in interest of the plaintiff she did, for the purpose of and with the intent to hinder, delay, defeat, and defraud plaintiff of the amount so owing by her to the predecessor in interest of the plaintiff, wrongfully and fraudulently execute a warranty deed for the above-mentioned premises, conveying the same to Virginia Yegen, her daughter, which deed was delivered to the grantee and recorded in the office of the county clerk of Yellowstone county, Montana; that no consideration whatever was paid therefor; that at the time of the conveyance said property was of a reasonable value in excess of the amount of plaintiff's judgment against the defendant Laura B. Yegen, who has been at all times since the owner thereof, although title thereto stands upon the records in the name of Virginia Yegen.
It is further alleged that subsequent to the date of said judgment, and prior to September 11, 1925, a transcript thereof was duly docketed in the office of the clerk of the district court of Yellowstone county; that on September 11, 1925, an execution upon said judgment was duly issued out of the district court of Deer Lodge county, under and by virtue of which the sheriff of Yellowstone county levied upon the above-mentioned real property as the property of the defendant Laura B. Yegen, standing on the records in the name of the defendant Virginia Yegen.
It is further alleged that the defendant Laura B. Yegen has no property, other than her interest in said real property above described, out of which the plaintiff's judgment may be satisfied, in whole or in part; that the defendant Virginia Yegen, at the time she accepted and received said deed, knew that the same was executed and delivered to her by the defendant Laura B. Yegen with the fraudulent purpose and intent of the defendant Laura B. Yegen to hinder, delay, defeat, and defraud the plaintiff of the amount due to it on account of said promissory note.
The answer of the defendants admitted the execution and delivery of the deed by the defendant Mrs. Yegen to her daughter, Virginia, but put in issue all the other allegations of the complaint. The cause was brought to trial before the court without a jury, and resulted in findings and a decree in favor of the defendants. The plaintiff has appealed, and in its brief has specified as error the refusal of the court to adopt each of its requested findings of fact and conclusions of law, as well as the action of the court in making its findings of fact and conclusions of law in favor of the defendants. In fine, the assignments of error raise but the single query whether the evidence preponderates against the court's findings and the decree entered in accordance therewith.
In an equity case such as this, the burden is upon the one who assails the findings of the trial court to show that the evidence preponderates against them, and, if he is unsuccessful in this, they will not be disturbed. Gravelin v. Porier, 77 Mont. 260, 250 P. 823; Allen v. Petrick, 69 Mont. 373, 222 P. 451; Scott v. Prescott, 69 Mont. 540, 223 P. 490. The record shows without dispute that the lands described in paragraphs 2 and 3 above, were purchased by Christian Yegen, husband of the defendant Mrs. Yegen, more than 20 years before the matters at issue in this action arose, and that by proper conveyance the title thereto was placed of record in the name of Mrs. Yegen under an express oral agreement that she should hold said lands for their children, for the purpose of providing a competency for them, independent of and distinct from her husband's property. All the children were advised of and understood this arrangement, and the conveyance of the lands just mentioned was made on March 4, 1924, to Virginia for the benefit of all the children, without any money consideration, but to carry into effect the agreement made when the title thereto was placed in Mrs. Yegen's name.
The action against Mrs. Yegen, upon which judgment was rendered against her in Deer Lodge county, was not commenced until November 25, 1924, and no attempt was made to fix a lien upon the above lands under the judgment rendered therein or otherwise, until the 11th day of September, 1925, or about a year and a half subsequent to the conveyance which it is sought to have set aside.
Under these circumstances the moral obligation assumed by Mrs. Yegen when she took legal title to the lands in her own name for the benefit of her children, which obligation she subsequently discharged by conveying the property to her daughter Virginia for the benefit of all the children, was sufficient to protect such conveyance from the attack of creditors on the ground that the same was without consideration and fraudulent, where the creditors had made no effort to subject the property to the payment of their claims by the imposition of a lien thereon prior to the conveyance. Paris Grocer Co. v. Burks, 56 Tex.Civ.App. 223, 120 S.W. 552; Clark's Adm'r, etc., v. Rucker, 7 B. Mon. [Ky.] 583; Bicocchi v. Casey-Swasey Co., 91 Tex. 259, 42 S.W. 963, 66 Am. St. Rep. 875; Powell v. Ivey, 88 N.C. 256; Silvers v. Potter, 48 N. J. Eq. 539, 22 A. 584; First Nat. Bank of Appleton v. Bertschy, 52 Wis. 438, 9 N.W. 534. In the last-mentioned case the court said:
"Where a conveyance is made by a debtor of property to which he has the legal title, but as to which another has an equitable claim, though such equity is not enforceable in any court, such debtor may recognize such equitable claim, and convey the estate to the claimant, without being guilty of any fraud as against his other creditors."
For the reasons above set forth, and in the light of the authorities cited, we shall dismiss from further consideration the conveyance of the lands described in paragraphs 2 and 3 above, and hold that as to them the conveyance should not be disturbed.
The situation with reference to the 20-acre tract described as the west half of lot 6, in township 1 south, range 26 east and lots 13, 14 and 15 in block 139 of the original town of Billings, mentioned in paragraphs 1 and 4, is wholly different from that of the lands we have just considered. These parcels were acquired by Mrs. Yegen in her own right, without any assistance from her husband or any one else. The substance of her testimony in reference to the manner in which she became possessed of this property, and in which she held the title, is that she bought it for the children, and that they so understood it, before and at the time she bought it. Such statements were purely voluntary, and did not impose upon her any legal or moral obligation, which would prevent her from disposing of the property to such persons, at such times, upon such terms, and for such considerations as she might select, and were not...
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