Quealy Land Co. v. George

• Decision Date: 05 January 1937
• Docket Number: 1938
• Citation: 63 P.2d 203,51 Wyo. 93
• Parties: Quealy Land Co. v. George
• Court: Wyoming Supreme Court

63 P.2d 203

51 Wyo. 93

Quealy Land Co. v. George

No. 1938

Supreme Court of Wyoming.

January 5, 1937

For the plaintiff in error there was a brief by Corthell, McCollough & Corthell of Laramie and oral argument by M.E. Corthell.

The issues in this case are: (1) Was there any adequate consideration for the transfers by Herman George and his wife to Henrietta George? (2) Were the transfers fraudulent as to the plaintiff? The rule that a debtor in failing circumstances has the right to prefer one creditor over other creditors and has the right to prefer one creditor, even though that creditor be a near relative, is usually qualified by the statement that where a debtor transfers all of his property, which may be taken for payment of his debts to a creditor, and particularly when that creditor is a near relative, it must be shown that the value of the property transferred cannot be disproportionate to the amount of indebtedness. There must be adequate consideration for the transfer. Haddox v. Northern Pac. Ry. Co., (Mont.) 113 P 1119; Cannady v. Chestonia, (W.Va.) 145 S.E. 390; Blumenthal v. Boston & M.R.R., (Me.) 54 A. 747; Weltmer v. Bishop, (Mo.) 71 S.W. 167; Stafford v. Company, (Wis.) 85 N.W. 1036; Zibbell v. Southern Pac. Co., (Calif.) 116 P. 513. The only evidence of the total consideration paid was given by Lizzie Kruegar, and the evidence shows that her testimony was false. Stoffer v. State, 15 O.S. 47; Peterson v. Johnson, (Wyo.) 28 P.2d 487; Rood v. Murray, (Mont.) 146 P. 541; Fertilizer Works v. Finnell, (W. Va.) 164 S.E. 253; Groth v. Thomann (Wis.) 86 N.W. 178; Santy v. Insurance Company, 164 S.E. 407. These facts and circumstances, were not given due consideration by the trial court and this may be due partially to the effect of the decision upon the first appeal, which was based upon a misunderstanding of some of the facts.

For the defendants in error, there was a brief and the cause was argued orally by Frank E. Anderson of Laramie.

The plaintiff introduced the testimony of Henrietta George in its case in chief, some of it for the purpose of cross-examination, the rest of it by making her their own witness. They called Lizzie Krueger over the objection of defendants, for the purpose of cross-examination, although she could not, under any condition have properly been made a defendant. They, then endeavored to discredit both of these portions of their own testimony. Harley v. State, (Ohio State) 21 N.E. 645; McDaniel v. State, 53 Ga. 253; 7 Ency. of Evidence 25; State v. Jackson, 24 A.R. 476. Plaintiff in error has asked this court to hold that Lizzie Krueger committed perjury as to one item of her testimony and has urged the maxim: falsus in uno, falsus in omnibus, to disregard her entire testimony whether corroborated by other facts or not. The maxim is for the guidance of the jury or trial court, in determining the weight to be given the testimony of the witness or witnesses. State v. Williams, 47 N.C. 257; Mead v. McGraw, 19 O.S. 55; Hutchinson Bank v Crow, 56 Ill.App. 558; People v. Hicks, 53 Calif. 354; Wigmore on Evidence, Vol. 2, pages 1170-4.

PER CURIAM.

This case is here on the third appeal. The opinion of this court on the first appeal will be found in 36 Wyo. 268, 254 P. 130. The opinion on the second appeal appears in 45 Wyo. 254, 18 P.2d 253. The present appeal is from a judgment in favor of the defendants and against the plaintiff.

For the main facts in this case we refer to the former opinions. We shall mention only a few, including the main items of additional testimony adduced at the third trial, in order that this opinion may be intelligible. The plaintiff claims as fraudulent a certain real estate mortgage dated April 22 1922, a chattel mortgage for $7000 given on the same date, and another chattel mortgage for $6873.75 given on September 25, 1923, all given by Herman George to his mother Henrietta George. A deed was subsequently taken for the real estate, a bill of sale for the chattels, and possession given to the mother. These instruments, too, are sought to be set aside, as given without consideration. The defendants claim that Henrietta George, mother of Herman George, advanced to the latter the sum of $11,000 prior to 1920; $7000 in 1920-1922, and the sum of $6873.57 in 1923, the two latter sums making $13,873.57. The first trial resulted in the finding of the court that the real estate mortgage was valid, and not given to defraud creditors. An appeal was taken from that judgment, and the finding of the court in that respect was affirmed, on the first appeal to this court mentioned above. One of the chattel mortgages given, namely, for $7000, also was upheld, and the second, namely, one for $6873.57 was held fraudulent. That finding was reversed. The second trial resulted in upholding both chattel mortgages. On the second appeal the judgment was reversed for the refusal of admitting certain evidence.

On the third trial additional testimony was adduced. That testimony had a bearing, partially, on the transactions prior to 1920, partially on those after 1920. The main testimony bearing on those prior to 1920 is as follows: Certain items (for $520 and $2800) were claimed to have been advanced by the mother to the son for sheep. Plaintiff sought to show that Herman George did not in fact buy the sheep alone, particularly, the sheep for which the item of $2800 was paid, but that the sheep were bought jointly by Herman George and his brother Charles George, and in that manner the items claimed to have been so advanced were sought to be discredited. There can be no doubt that the sales of the sheep took place and that they were paid for. Charles George testified that they belonged exclusively to Herman. Testimony, however, was introduced that in 1918 he signed an assessment schedule claiming one-half of the sheep. To discredit the whole loan of $11,000, prior to 1920, testimony was introduced that during 1919 there was litigation between Henrietta George and Herman George, wherein the latter claimed wages for his mother, and in which the mother claimed to have advanced certain items to the son, none of which corresponded with the items claimed to have been included in the $11,000 mortgage. It was further shown that the feeling between mother and son during the litigation was bitter. The main items of testimony bearing on the loans claimed to have been made after 1919 will be mentioned later.

Counsel for the plaintiff, appellant here, have devoted a great portion of their brief to the testimony relating to the transactions prior to 1920. Perhaps they have laid too great a stress thereon. These transactions are involved in this case only incidentally. They all relate to the real estate mortgage, which was upheld by the trial court, affirmed in this court, and that matter is, accordingly, res judicata. The only bearing which they have upon the subsequent transactions is merely by way of crediting or discrediting the testimony relating to the transactions subsequent to 1920. In view of that fact, this court, after discussing some of the testimony erroneously excluded on the second trial stated in the opinion on the second appeal that "it should be observed in this connection, however, that the sum of $13,873.57 was claimed to have been loaned the son by the mother after 1919. If as a matter of fact this money was loaned as claimed and it should further appear that the personal property in question is not worth more than such sum, the mother should be protected." The only actual question in this case, accordingly, is as to whether the sum of $13,873.57 was loaned, and the value of the chattels turned over to the mother. All else is merely incidental. And we may say in this connection that the plaintiff claims that the value of the property turned over to the mother is the sum of $14,210. Value being to some extent at least a matter of opinion, the difference between the last mentioned sum and the sum of $13,873.57 is too small to be taken into consideration here, so that the only question left herein is as to whether this sum was actually loaned. Counsel for plaintiff claim that there is no substantial evidence to support such claim. That depends on whether or not Mrs. Krueger, daughter of Henrietta, told the truth. If she did, there is substantial testimony. And in this connection it may be stated that three different trial judges credited her testimony as to the $7000 mortgage, and two different trial judges believed her as to both of the chattel mortgages, and the only question for us, accordingly, is as to whether the circumstances shown are so distinct, clear and convincing that the trial judges had no right to believe Mrs. Krueger. That this is asking a good deal of this court is apparent, in view of the fact that Mrs. Krueger was on the witness stand in each of the trials, and the trial court had a much better opportunity to know the truth than...