Quealy Land & Livestock Co. v. George, 1754

• Decision Date: 24 January 1933
• Docket Number: 1754
• Citation: 18 P.2d 253,45 Wyo. 254
• Parties: QUEALY LAND & LIVESTOCK CO. v. GEORGE, ET AL
• Court: Wyoming Supreme Court

18 P.2d 253

45 Wyo. 254

QUEALY LAND & LIVESTOCK CO. v. GEORGE, ET AL

No. 1754

Supreme Court of Wyoming

January 24, 1933

ERROR to District Court, Albany County; BRYANT S. CROMER, Judge.

Action by Quealy Land & Livestock Company against Henrietta George and others. After the trial, defendant Henrietta George died and the case was revived against Charles E. George, and another, as executors of her last will and testament, and her heirs and legatees. Judgment was rendered for defendants, and plaintiff brings error.

Judgment reversed and case remanded.

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

There are two principal contentions on the part of the plaintiff in error: (1) No consideration for the transfers. (2) Chattel mortgages were devices adopted and used to prevent creditors from realizing on their claims.

The relation between the Court and attorneys carries the presumption that when an attorney appears and assumes to act for a client, he has authority to represent the client in all matters in which an attorney usually acts; State ex rel Gould, et al. v. Superior Court, (Wash.) 276 P. 98; Johnson v. Bomhoff, (Mo.) 18 S.W.2d 13; In re Level Club, 48 F.2d 1002; Linn v. Clark, (Ill.) 128 N.E. 824; Ill. Cent. R. Co. v. Norris, 245 F. 926; Heyer, et al. v. Hines, 36 Wyo. 53; Paxton v. State, (Nebr.) 81 N.W. 383; Vogel v. Osborne, (Minn.) 20 N.W. 129; Toelle v. Shows Co., (Kans.) 207 P. 849; Ayres v. Co., 17 Iowa 176; Clarke v. Taylor, (Mass.) 168 N.E. 806; Dingfelder v. Co., (Wash.) 229 P. 17.

It was an error to exclude from evidence the answer and set-off. Riddle v. Riddle, (N. C.) 97 S.E. 382; Sutherland v. Briggs, (Iowa) 166 N.W. 476; Renville State Bank v. Kinsberg, (S. D.) 166 N.W. 643; Mathews v. Livingston, (Conn.) 85 A. 529; Tanner v. Hinson, (Ga.) 92 S.E. 1005; Thaden v. Bagan, (Minn.) 165 N.W. 864; Feldman v. McGuire, (Ore.) 55 P. 872; Rudolph v. Ins. Co., (N. Y.) 167 N.E. 223.

The Court erred in refusing to admit in evidence tax assessment schedules for the year 1918. They were material on the question of ownership of the sheep; Barks v. Kleyne, (Ia.) 200 N.W. 439; Bank v. Hartsock, (Ia.) 210 N.W. 19; Bank v. Brubaker, (Ia.) 105 N.W. 116; McDonough, et al. v. McGowan, (Ky.) 177 S.W. 277; Detroit Co. v. Gitre, (Mich.) 235 N.W. 884.

The Court erred in refusing to permit the witness, Joe Lane to testify as to what the running expenses should be for the operation of the ranch, while Herman George was managing it and the sheep. A creditor unable to extract from people who know, and whose duty it is to explain what the running expenses were, should not be prevented from showing what the expenses of running a property of that kind should be; Boyd v. Coleman, (Ore.) 294 P. 604; Leser v. Glaser, (Kan.) 4 P. 1030; Frankhouser v. A. W. Ellett, 22 Kan. 103; Vermillion v. Bank, (Ind.) 105 N.E. 530; Highways Inc. v. Thompson, (Ind.) 156 N.E. 407; Brody v. Pecoraro, (N. Y.) 164 N.E. 742; Nelson v. Ruthowski, (Minn.) 224 N.W. 457.

The Court erred in rendering judgment upon the motions of the defendants.

For the defendants in error there was a brief by F. E. Anderson, of Laramie, Wyoming, and oral argument by Mr. Anderson.

Questions affecting this controversy were before this Court and decided on March 23, 1927, being reported in 36 Wyo. 268. In this case the trial court sustained a motion for judgment in favor of defendant at the close of plaintiff's case. We believe the judgment was proper for the reason that plaintiff failed to sustain the allegations of its petition. No fraud was proven. Patterson v. Lee-Clark, et al., 7 Wyo. 401. This court sustained a mortgage given in satisfaction of an existing debt. A case very much in point with the case at bar, is that of Johnson v. Abbott, 25 Wyo. 133. A debtor may prefer one creditor to another, although the preferred creditor is his wife, if the claim be bona fide. 26 P. 942, 25 Wyo. 133, 233 P. 481. There is no presumption of law that a mortgage is made with fraudulent intent. 156 S.W. 1154, 155 N.W. 604. Bump on fraudulent conveyances, page 194: "The burden of proof rests upon the creditor who seeks to impeach the preference." Barr v. Hatch, 3 Ohio 527, 27 C. J., pages 626, 627, 634 and 612; Fraser v. Passage, 30 N.W. 334; Bank v. Weber, 33 N.W. 606; Pependick v. Frobenius, 33 N.W. 887; Buhl v. Peck, (Mich.) 37 N.W. 876; Rockford v. Mastin, (Ia.) 39 N.W. 220; Bank v. Crocc, 26 P. 942; Trust Co. v. Scheetz, 195 N.W. 348, Vol. 16, S.C. R., p. 225; Lbr. Co. v. Bosbyshell, 196 P. 274. The Answer and Cross-Petition in original suit was properly excluded from evidence. It was wholly immaterial. Taylor v. Evans, 145 S.W. 564. Where the interest of co-parties is several, the admissions of one are not competent against the other. 22 C. J., p. 349; Hudkins v. Crim, 61 S.E. 166.

BROWN, District Judge. KIMBALL, C. J., and BLUME, J., concur.

OPINION

BROWN, District Judge.

This is the second time this case has been before this court. For the former opinion see 36 Wyo. 268, 254 P. 130. This action was brought in Albany County by plaintiff, Quealy Land and Livestock Company, against Herman George, Amy C. George his wife, and Henrietta George, his mother, to have set aside, as fraudulent, a deed, dated December 12, 1923, conveying from Herman George and wife to his mother all of the real estate owned by him, except a homestead of 160 acres exempt from execution under both Federal and State law; reciting as consideration therefor the discharge and settlement of a certain real estate mortgage, dated April 10, 1922, for the sum of $ 12,103.66, covering the real estate mentioned in the deed. Also to have set aside as fraudulent and given for the purpose of hindering and delaying creditors, a bill of sale dated December 12, 1923, transferring from Herman George and wife, to his mother, certain sheep and wool, being all of the sheep and wool then owned by him, reciting as a consideration therefor the discharge and cancellation of two chattel mortgages dated April 10, 1922, for the sum of $ 7000.00 and September 25, 1923, for the sum of $ 6873.57, respectively, each covering all or substantially all of the sheep, lambs and wool owned by defendant Herman George at the time of their execution.

The plaintiff, Quealy Land and Livestock Company, brought an action on a promissory note against defendants Herman George and Amy C. George, May 11, 1921, and recovered judgment September 22, 1923. On November 5, thereafter, execution issued on said judgment and on December 5th, was returned unsatisfied.

The position of the defendant, Herman George, is that under an agreement as early as 1912, his mother, Henrietta George, advanced to him from time to time large sums of money with which to improve the land in question, stock the same with sufficient livestock, and to cover his running expenses. That she loaned him in 1914 and 1915 the sum of $ 3625.00; in 1916, the sum of $ 1910.00; in 1917, the sum of $ 5465.00; in 1920 and 1921 the sum of $ 7000.00, and in 1922 the sum of $ 6873.57. That in giving his mother the deed, bill of sale and several mortgages he was only carrying out his agreement with her and securing her for the money she had advanced to him. That in so doing he acted in good faith and with honest intentions.

As a result of the first trial the lower court found that the transfer of the real estate from George to his mother was in good faith and for a valuable consideration, but that the transfer of the personal property was fraudulent and made for the purpose of hindering and delaying creditors. Each party appealed from that part of the judgment adverse to it.

In the former hearing in this court, the judgment of the lower court was affirmed as to the transfer of the real property and reversed as to the transfer of the personal property and remanded for a new trial on the issue of the validity of the bill of sale and chattel mortgages. The question of the validity of the real estate transfer is closed and determined and will receive no further mention.

In the second trial below, all of the evidence introduced by both parties in the first trial was introduced by stipulation. The court on motion of defendants' counsel, at the close of the plaintiff's case found in favor of the defendants.

Plaintiff brings the case here by proceeding in error.

After the trial below Henrietta George died and the case was revived against her personal representatives, heirs and legatees.

The errors complained of except the formal specifications, that the decision and judgment are contrary to the evidence contrary to law, not sustained by sufficient evidence, and that the court erred in overruling the motion for new trial, relate largely to the refusal of the court to receive in evidence certain documents consisting of pleadings, judgment roll, a receipt evidencing the settlement of the controversy, in certain litigation between the son and his father and mother in 1919, and an assessment schedule signed by Herman George for the year 1918. This litigation between these parties consisting of first, an action brought by the son against his father and mother, claiming the sum of $ 1133.00 for general ranch work performed during the year 1913 to 1917. In their answer and cross petition the father and mother claimed there was due them from the son the sum of $ 3240.00 made up of a number of items, some for money loaned, none of which correspond to the sums the mother claims in this action to have loaned him prior to that time. Second, a replevin action brought by the father and mother against the son about the same time. Third, objections filed by the son against his mother as administratrix of his br...