Nyswanger v. Roberts

• Court: South Dakota Supreme Court
• Writing for the Court: RUDOLPH, Judge.
• Citation: Nyswanger v. Roberts, 67 S.D. 362, 293 N.W. 187 (S.D. 1940)
• Decision Date: 08 July 1940
• Docket Number: 8357.
• Parties: NYSWANGER v. ROBERTS. ASHLEY v. ROBERTS et al.

293 N.W. 187

67 S.D. 362

NYSWANGER v. ROBERTS.

ASHLEY v. ROBERTS et al.

No. 8357.

Supreme Court of South Dakota

July 8, 1940

Rehearing Denied August 30, 1940.

Appeal from Circuit Court, Pennington County; A. R. Denu, Judge.

Two actions by Lillian Nyswanger against Otis H. Roberts, known as O. H. Roberts, and by Charles M. Ashley against Otis H Roberts and another, to set aside a deed. From an adverse judgment in the first mentioned action, defendant appeals.

Reversed.

John T Milek, of Sturgis, for appellants.

Atwater & Helm, of Sturgis, for respondents.

RUDOLPH Judge.

The plaintiff, Lillian Nyswanger, brought this action against the defendants seeking to set aside a deed to certain residential property in Rapid City. The deed was given by the plaintiff to defendants at a time when plaintiff's creditors were causing plaintiff trouble. The creditors thereafter brought an action to set the deed aside on the grounds that it was given for the purpose of defrauding creditors, and in that action this plaintiff appeared and under her oath testified that the deed was given for a valuable consideration and in detail described that consideration, which, according to her testimony, consisted of three promissory notes which represented an indebtedness owing to her by the defendant, O H. Roberts. It developed during that trial, however, that the premises in question was the homestead of the plaintiff in this action, and the court thereupon and upon this ground refused to set aside the deed to Roberts. The court acted under the rule announced by this court that a conveyance of a homestead which is exempt from creditor's claims does not constitute a fraud on creditors who have no rights in such property and who are not affected by its transfer with or without consideration, and with or without a fraudulent intent. Smith v. Midland Life Insurance Co., 57 S.D 497, 234 N.W. 20. Thereafter plaintiff commenced this present action wherein she, herself, seeks to set aside this deed to Roberts on the grounds that it was given without consideration. In this present trial plaintiff testified that her testimony given in the prior trial was false, purely a fabrication, and that it was given for the purpose of protecting her home against the claims of her creditors. She now asserts under her oath that no consideration passed from Roberts to her, and that the deed was given to Roberts solely for the purpose of defrauding creditors. The trial court set the deed aside and the defendant has appealed from the judgment entered.

The trial court reached his conclusion upon the premise which is stated in his memorandum opinion, as follows: "If a party under the mistaken apprehension that certain property could be held liable for his debts conveys the property to evade the liability, he will be entitled to recover back the property if in fact it was not liable for his debts." This rule finds considerable support in the decided cases but is not entirely without dispute,...