Ritz v. Rea
| Decision Date | 09 April 1912 |
| Citation | 135 N.W. 645,155 Iowa 181 |
| Parties | CLAUS RITZ, Plaintiff and CHARLES FLOTO, Intervener, Appellees v. ANNA REA, Administratrix, etc., Appellant |
| Court | Iowa Supreme Court |
Appeal from Cass District Court.--HON. E. B. WOODRUFF, Judge.
SUIT in equity to enjoin the levy of an execution and the enforcement of a judgment rendered in favor of one Theo. H. Brown against intervener Floto. The trial court granted the relief prayed and defendant appeals.--Affirmed.
Decree affirmed.
C. A Meredith and J. B. Rockafellow, for appellant.
J. C Bryant and T. J. Bryant, for appellee.
Intervener, Charles Floto, signed a statement and affidavit authorizing a judgment against himself and in favor of Theo. H. Brown for the balance due upon a joint and several promissory note made by Floto and one Robert Larrington, executed in the year 1891. Upon this confession, judgment was rendered in favor of Brown and against Floto in the district court of Cass county, Iowa, on March 7, 1895, for the sum of $ 673.87 and costs. The judgment record shows the following assignment of this judgment: . The Robert Larrington referred to in this assignment is now deceased, and the defendant, Rea, is administratrix of his estate. At defendant's request, and on March 7, 1905, an execution was issued upon this judgment, which was levied upon a lot in the town of Griswold, the legal title to which was in a stranger until February 22, 1905, when intervener, Floto, filed for record a deed to an undivided one-half thereof, dated May 14, 1903. He also filed for record on the same day a deed to the other one-half thereof, which was made by one Paschal on February 20, 1905. On the day when these two deeds were recorded, Floto also filed another deed for the entire property conveying the same to plaintiff, Claus Ritz, who is the father-in-law of Floto. At the same time he also placed of record a bill of sale conveying a lot of personal property to Ritz. These two instruments conveyed to Ritz all the tangible property which Floto then had. Immediately upon the levy of the execution, plaintiff, Ritz, commenced this action to enjoin the sale of the property, and for a decree declaring the judgment not to be a lien upon the property, and for a permanent injunction against the enforcement of the judgment. In this petition Ritz claimed that the judgment was barred by the statute of limitations; that it had been paid by Floto to Brown; that defendant had no title to the judgment; and that between the date of the execution of the statement for the confession which was in December, 1891, and the time the judgment was rendered in March, 1895, the indebtedness had been paid. Defendants took issue with these allegations and they also claimed that the conveyance and bill of sale by Floto to Ritz were fraudulent and void, and made with intent to defraud creditors. Floto then came into the case with a petition of intervention, in which he claimed that he paid Brown the amount of his indebtedness between the time he signed his statement for a confession and the time the judgment was rendered thereon, and that Brown agreed to cancel his indebtedness. The defendant then filed a cross-petition against both plaintiff and intervener, in which she pleaded her title to the judgment, averred that intervener was insolvent, and that nothing had been paid on the judgment, except the sum of $ 69.75 on April 8, 1895. She set forth the title to the property levied upon, claimed that it in truth belonged to intervener, Floto, and that the conveyance thereof to Ritz was fraudulent, and void as to creditors of Floto, and she asked that the conveyance be set aside, and that the judgment be declared to be a lien upon the property, and that the same be subjected to the payment thereof.
Plaintiff, Ritz, and intervener, Floto, his wife joining, answered the cross-petition, and averred that: They denied the fraudulent character of the conveyance and further pleaded that an execution issued on the original judgment in March, 1895, by direction of one Chas. Patterson, an attorney for Brown, and that In an amendment to his answer Ritz pleaded that the deed from Floto and wife to him of the property in controversy was made as security by reason of his having signed a note with Floto to the Bank of Griswold for the sum of $ 2,000, and that this note has never been paid. He also averred that the conveyance was in good faith, and without knowledge that Floto was indebted upon the judgment or for anything else, and that said conveyance was upon a valuable consideration. Defendant then pleaded that both Ritz and Floto were barred by the statute from attacking the judgment, and that, by reason of having made an absolute conveyance to the lot rather than a mortgage, the transaction was fraudulent and void.
Such were the issues in the case, and, upon the testimony adduced, the trial court found for the plaintiff and intervener. The issues, as will be seen, are somewhat complicated, and the case was tried in such a manner that it is difficult to say from competent testimony just what the facts are. Brown and Larrington are both dead, and the testimony of Chas. Patterson, who made the assignment of the judgment to Larrington, was taken in the form of a deposition, part of which only was offered in evidence. Over defendant's objections plaintiff and intervener were permitted to read in evidence a letter from Patterson, in which he claimed to be the owner of the judgment in virtue of an assignment from Brown. This letter seems to have been written March 31, 1905. Letters from some attorneys in Atlantic who represented the defendant to Brown, and Brown's answers thereto, were also offered in evidence, and, if these various letters are to be considered, there seems to have been a misunderstanding between Brown and his attorney, Patterson, and between Patterson and Larrington regarding the ownership of the judgment upon which the execution was issued. Patterson claims that Larrington in his lifetime assigned the judgment to him, and Brown indicates in his letters that the judgment was assigned by him to Larrington, and that Larrington did not assign to Patterson. It is conceded that through a levy upon a judgment held by Floto against one Besser the sum of $ 69.79 was secured about March 15, 1895, to apply upon the judgment in suit, and it also appears without serious dispute that plaintiff took the deed to the lot in question to secure him for signing a note with Floto as surety to the Bank of Griswold for the sum of $ 2,000, this loan having been made on February 22, 1905. It also appears that the execution was not issued upon the judgment by confession until more than ten years after the rendition of the judgment.
I Floto testified, over objection that his testimony was inadmissible under section 4604 of the Code, that he paid the entire amount of his indebtedness upon which the confession of judgment was rendered, except the amount represented by the Besser judgment to Brown before the judgment was entered, and his wife testified to a payment to him of $ 300 in March of the year 1894. We are constrained to hold that Floto's testimony as to the payment of the judgment to Brown was inadmissible under section 4604 of the Code, because Larrington was either the assignee of that judgment from Brown, or, if not such assignee, then neither he nor his...
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