Petty v. Petty

• Decision Date: 29 April 1946
• Docket Number: 7267
• Citation: 66 Idaho 717,168 P.2d 818
• Parties: IVA PETTY, Plaintiff-Respondent, v. FOLLIS G. PETTY, LESLIE GARDNER PETTY, an infant; FAITH GENERAL PETTY, an infant; MARY MARGUERITE FORD PETTY, MILTON E. ZENER and BEN PETERSON, Defendants-Appellants
• Court: Idaho Supreme Court

168 P.2d 818

66 Idaho 717

IVA PETTY, Plaintiff-Respondent, v. FOLLIS G. PETTY, LESLIE GARDNER PETTY, an infant; FAITH GENERAL PETTY, an infant; MARY MARGUERITE FORD PETTY, MILTON E. ZENER and BEN PETERSON, Defendants-Appellants

No. 7267

Supreme Court of Idaho

April 29, 1946

1. Pleading

Great liberality should be exercised in permitting amendments to pleadings. (I.C.A., sec. 5-905.)

2. Quieting title

Trial court should have granted defendant's motion, made before entry of decree, to reopen suit to quiet title, in order to enable defendants to allege that purported deed and bill of sale between plaintiff and one of the defendants were void on ground that it was fraudulent. (I.C.A., sec. 5-905.)

3. Fraudulent conveyances

Generally a creditor must reduce his claim to judgment before he can prosecute a suit to set aside a conveyance as fraudulent. (I.C.A., sec. 54-906.)

4. Fraudulent conveyances

The obligation of a father to support his children, being statutory, stands on an equal footing with an obligation reduced to judgment, and hence a minor child without reducing his claim to judgment, is a "creditor" of the father within meaning of statute relating to fraudulent conveyances and may maintain suit to set aside conveyances as fraudulent. (I.C.A., secs. 17-1901, 31-1003, 54-906.)

Appeal from the District Court of the Fifth Judicial District of the State of Idaho, in and for Bannock County. Hon. D. H Sutphen, Presiding District Judge.

Reversed and remanded with directions.

Zener & Peterson for appellants.

A voluntary conveyance to a wife by a husband at a time when the husband by such conveyance strips himself of his property and at a time when a choose in action or debt exists against him is void. (Sec. 54-906, Idaho Code Annotated, 1932; Sec. 54-907, Idaho Code Annotated, 1932; Sec. 54-901, Idaho Code Annotated, 1932; Snell v. Prescott, 48 Ida. 783, 285 P. 483; Cook v. Gaskins, 48 P. 1025; Louk v. Patten, 58 Ida. 334; Kehr v. Smith, 20 Wall, (U.S.) 31, 22 L. ed. 313.)

A party to a suit may at any time before judgment reopen his case for the purpose of amending his pleading to conform to the proof. (Sec. 5-902, Idaho Code Annotated, 1932; Snowy Peak Mining Co. v. Tamarack & Chesapeak Mining Co., 17 Ida. 630; Clopton v. Meeves, 24 Ida. 293, 133 P. 907; Trousdale v. Winona Wagon Co., 25 Ida. 130, 137 P. 372; State v. American Surety Co., 26 Ida. 652, 145 P. 1097, Ann. Cas. 1916E, 209 (in brief of counsel.)

Samuel Adelstein for respondent.

Our Supreme Court recognizes the right of a husband to give his interest in the community property to his wife and to thereby change the title of the property from that of community to the separate estate of the wife. (1943 Session Laws, Chap. 23, p. 51 amending Sec. 31-907, I.C.A.; Gooding Mill and Elevator Co. v. Lincoln County State Bank, 22 Ida. 468, 126 P. 772; Glover v. Brown, 32 Ida. 426, 184 P. 649.)

The rule that the burden of proof is on the person attacking conveyance as fraudulent not only applies to independent actions brought to set aside a fraudulent conveyance, but also in an action to quiet title. (Vogt v. Marshall-Wells Hardware Co. (Cal.), 172 P. 123; 34 C.J., p. 859, Sec. 1268; Weedman v. Fowler (Cal.), 113 P. 390.)

The defendants and appellants were not attempting to reopen their case for the purpose of amending their pleadings to conform to the proof, since they had not alleged fraud nor offered proof as to fraud neither by their pleadings nor by any proof. (Sec. 5-902, I.C.A.)

Holden, J. Ailshie, C.J., and Budge, Givens and Miller, JJ., concur.

OPINION

Holden, J.

May 8, 1942, William F. Howard and Minnie F. Howard, husband and wife, by warranty deed, conveyed the real property involved in this suit to Follis G. Petty and Iva Petty. March 3, 1944, the said deed was recorded in the office of the County Recorder of Bannock County. March 2, 1944, Follis G. Petty, by deed conveyed to his legal wife, Iva Petty, the real property conveyed by the Howards, and on the same day Follis G. Petty did "grant, bargain, sell and convey unto said" Iva Petty, by bill of sale, certain personal property, furniture and fixtures, described therein, the said real and personal property being the community property of the said Follis G. Petty and Iva Petty. March 3, 1944, the said deed was also recorded in the office of the County Recorder of Bannock County. March 7, 1944, the said Follis G. Petty and Iva Petty executed and delivered to A. P. Marso and the Atlas Loan & Investment Company, a corporation, a deed to said real property for the purpose of securing bail, which deed was recorded March 8, 1944, in the office of the County Recorder of Bannock County. April 4, 1944, said A. P. Marso and Evelyn M. Marso and the Atlas Loan & Investment Company, a corporation, executed a quit claim deed to said Follis G. Petty and Iva Petty, covering the above mentioned real property, said quit claim deed being recorded in the office of the County Recorder of Bannock County, Idaho, April 5, 1944. April 11, 1944, said Atlas Loan & Investment Company quit claimed said real property to Follis G. Petty and Iva Petty, the quit claim deed being recorded in the office of the County Recorder of Bannock County, April 29, 1944. May 25, 1944, Leslie Gardner Petty, a minor, then about three years old, by and through his guardian ad litem, Mary Marguerite Ford Petty (not the legal wife of Follis G. Petty), commenced a suit in the District Court of the Fifth Judicial District of the State of Idaho, in and for Bannock County, against Follis G. Petty and Iva Petty, his wife, and others for the support of the said Leslie Gardner Petty, minor child of the said Mary Marguerite Ford Petty and the said Follis G. Petty, and for attorney fees. August 14, 1944, an order was made and entered in said last mentioned suit whereby it was ordered that Follis G. Petty pay the said guardian ad litem, Mary Marguerite Ford Petty, the sum of $ 35.00 a month for the support of said minor, Leslie Gardner Petty, together with the further sum of $ 25.00 suit money and $ 100.00 temporary counsel fees. May 25, 1944, suit was commenced by Faith Geneal Petty, a minor, then about eight years old, by and through her guardian ad litem, Mary Marguerite Ford Petty, against Follis G. Petty and Iva Petty, his wife, and others, for the support of said Faith Geneal Petty, minor child of said Mary Marguerite Ford Petty and said Follis G. Petty, and for attorney fees. August 14, 1944, an order was made in said last mentioned suit requiring said Follis G. Petty to pay the sum of $ 35.00 a month for the support and maintenance of said minor, Faith General Petty, together with the further sum of $ 25.00 suit money and the further sum of $ 100.00 temporary counsel fees. December 13, 1944, judgment was rendered and entered in the last mentioned suit for costs, support, suit money, temporary counsel fees, and permanent counsel fees. November 4, 1944, this suit was commenced by respondent Iva Petty against Follis G. Petty, Leslie Gardner Petty, an infant; Faith Geneal Petty, an infant; Mary Marguerite Ford Petty, Milton E. Zener and Ben Peterson, to quiet title to the real and personal property described in the complaint, it being in the usual form.

November 9, 1944, the above named defendants, excepting Follis G. Petty, answered the complaint. Thereafter, to-wit, January 24, 1945, said defendants, excepting the said Follis G. Petty, filed an amended answer, the answer upon which the cause was tried. By the amended answer the said defendants denied the material allegations of the complaint and affirmatively alleged the said real and personal property was the community property of Follis G. Petty and Iva Petty. The cause was tried to the court, sitting without a jury, January 24, 1945. Thereafter, and before the decree was entered, to-wit, April 23, 1945, appellants moved the court to reopen the case "to enable defendants to move for leave to amend defendants' answer so as to allege that the purported deed and bill of sale between the plaintiff and defendant, Follis G. Petty, dated March 2, 1944, was void for the reason that the same was fraudulent . . ." The motion was denied.

May 7, 1945, findings of fact and conclusions of law were filed and on the same day decree was entered thereon in favor of respondent and against appellants, quieting title in respondent to the real and personal property in question. The appeal to this court is from the decree.

Appellants complain the court erred in denying their motion to reopen the case and for leave to amend their answer by pleading fraud. The motion was made, as above pointed out, before the decree...