Salemonson v. Thompson
| Decision Date | 26 February 1904 |
| Citation | 13 N.D. 182,101 N.W. 320 |
| Parties | SALEMONSON v. THOMPSON. |
| Court | North Dakota Supreme Court |
1. Section 5630, Rev. Codes 1899, which governs the trial of actions tried to the court without a jury, gives to appellants the right to specify questions of fact for review upon appeal, but does not confer the same right upon respondents. Specifications of fact inserted in the statement by a respondent, against appellant's objection, will be disregarded.
2. A question of fact specified for review in this court under section 5630, Rev. Codes 1899, must be sufficiently definite to enable the respondent to determine, for the purposes of amendment, what evidence should be included in the statement of case.
3. A judgment regularly rendered and entered by a court of competent jurisdiction is, in the absence of allegation and proof of fraud or collusion, conclusive evidence of the debt and its amount, in an action to try title by the judgment creditor, against an alleged fraudulent grantee of the debtor.
4. A judgment against a nonresident, where jurisdiction rests only upon service by publication, and the seizure of the debtor's property under a writ of attachment, has the same conclusive effect, to the extent of the debtor's interest in the property seized, as a judgment rendered upon personal service.
5. Under section 5052, Rev. Codes 1899, “every transfer of property * * * with intent to delay or defraud any creditor or any other person of his demands, is void against all creditors of the debtor. * * *” As between the parties, such transfers are valid; but as to creditors, they are void at their election. The levy of a writ of attachment upon property transferred to defraud creditors is deemed an election by the creditor to treat the conveyance as void. Property so transferred is as much subject to a levy under execution or writ of attachment as though no transfer had been made.
6. A conveyance of property by a debtor, not made in good faith, but executed by the grantor and received by the grantee with intent to defraud creditors, is not relieved from the condemnation of the statute by the fact that it was given for a valuable consideration or to pay an honest debt.
Appeal from District Court, Grand Forks County; C. J. Fisk, Judge.
Action by Thone Salemonson against Julia Thompson. Judgment for plaintiff, and defendant appeals. Reversed.B. G. Skulason and F. B. Feetham, for appellant. R. M. Carothers and Guy C. H. Corliss, for respondent.
This is an action to determine adverse claims to 160 acres of land situated in Grand Forks county. The complaint is substantially in the form prescribed by chapter 5, p. 9, Laws 1901. The plaintiff alleges that she has an estate in fee simple in the premises, and is in possession; that the defendant claims an interest therein; and prays that said defendant be required to set forth such adverse claim, to the end that its validity and priority may be determined. The defendant in her answer alleges, among other things, that on and prior to the 10th day of October, 1901, the land in question was jointly owned and occupied by the plaintiff and her brother, one Charles O. Myrom, each having an undivided one-half interest; that on the above-named date the said Myrom pretended to convey to plaintiff his interest therein by a warranty deed; that on the 20th day of May, 1901, prior thereto, mutual promises of marriage were made and entered into between this defendant and the said Charles O. Myrom; that in the month of June, 1901, the said Myrom, under said promise of marriage, seduced the defendant and got her with child, which child was born on the 11th day of March, 1902, and is still living; that said Myrom broke his said contract of marriage, and refused to perform the same; that during the most of the time in question the said Myrom was a member of the family of the plaintiff, which consisted of plaintiff and her husband, Gunder Salemonson; that the contract of marriage and its breach, and the seduction of the defendant by Myrom, and the relations of the defendant to the said Myrom, were known at all times to the plaintiff and her said husband; that after the breach of said promise of marriage, and seduction, and with full knowledge thereof on the part of the plaintiff and her husband, “the said Charles O. Myrom, with intent to delay the defendant in her demand for damages against him for the breach of said marriage contract, did fraudulently, voluntarily, and without consideration, by the conveyance above described, pretend to transfer to the plaintiff all his interest in said real estate; that the plaintiff's said husband, Gunder Salemonson, acted for and in behalf of the plaintiff in said transaction; that the said transfer was made in anticipation of a suit for damages which the plaintiff, her husband, and the said Charles O. Myrom expected defendant to bring, and for the purpose of covering up the property of said Charles O. Myrom and thereby defeating the claims of this defendant; that the plaintiff and her husband participated in said fraudulent scheme, and were fully cognizant of all the facts above pleaded; that by reason of said fraudulent transfer the defendant has been obstructed in her enforcement by legal process of her right to the real estate in satisfaction of her said demands.” The answer further alleges that on the 11th day of March, 1902, the defendant instituted an action against Myrom to recover damages for the breach of his promise of marriage; that on the 13th day of March, 1902, a writ of attachment, issued in aid of said action, was levied upon all the right, title, and interest of Myrom in said land; that on the 1st day of July, 1902, judgment was entered in said action in favor of this defendant in the sum of $5,030.20; that on the 18th day of July, 1902, a writ of execution issued thereon, and on the 13th day of October, 1902, the interest of said Myrom in said real estate was sold to this defendant for the sum of $2,500, and a sheriff's certificate of sale issued to her, which sale was thereafter duly confirmed by the court. The defendant prays, among other things, that Myrom's conveyance to the plaintiff be decreed to be null and void and canceled of record, and that the sale upon execution to this defendant be declared valid and binding as to Myrom's undivided one-half interest. The plaintiff filed a reply, in which she admits that she and Myrom were the owners of the land as alleged; that Myrom executed the conveyance in question; but denies that it was a pretended or fraudulent conveyance, or was made for the purpose of hindering or defrauding the defendant or any other person; and alleges that it was executed in good faith and for a valuable consideration; “that the interest of said Charles O. Myrom was purchased by Gunder Salemonson, the husband of the plaintiff, and that said Gunder Salemonson caused the said deed of conveyance upon said purchase to be executed to his wife, this plaintiff.” The reply also denies that any marriage contract ever existed between the defendant and Myrom, or that Myrom ever violated any marriage contract, or that any action to recover damages was instituted, or that any judgment was recovered, and alleges that all proceedings in said action were utterly without jurisdiction, either over the person of said Charles O. Myrom or of the real estate described in the complaint and answer herein, and that said Charles O. Myrom was never personally served with the summons in said pretended action within the state of North Dakota, and never appeared in said action; that the only service of summons upon him was by publication, and that no property of said Myrom was ever attached in the state of North Dakota in said action. The trial court entered judgment declaring that the attachment, judgment, and execution were null and void, and that the defendant has no estate or interest in the premises. Defendant appeals.
The statement of case, which was settled pursuant to section 5630, Rev. Codes 1899, under which the case was tried, presents an anomalous condition. It includes specifications of fact for retrial in this court on behalf of the respondent as well as the appellant. The respondent injected into the statement, over appellant's objection, six specifications of fact which she desires to have reviewed on this appeal. These specifications must be disregarded. Section 5630, Rev. Codes 1899, prescribes what the statement of case shall contain, and is the source of our authority to review evidence in all cases tried thereunder. That section provides that: * * *” This statute does not confer upon a respondent the right to secure a review of the evidence upon any fact. That right is conferred only upon the appellant.
Moreover, we are of opinion that the appellant's specification is insufficient to call for a review of the evidence. It is as follows: “Appellant specifies the following question of fact, which she desires the Supreme Court to review, to wit, was Julia Thompson, the above-named defendant and appellant, a creditor of Charles O. Myrom?” The vice in this question is that it does not present for examination and...
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Holden v. Walker
...of attachment upon property transferred to defraud creditors is deemed an election to treat the conveyance as void." Salemonson v. Thompson, 13 N.D. 182, 101 N.W. 320. our statutes, § 7537, subd. 4, property may be attached when the defendant has sold the same with intent, not only to cheat......
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Baird v. Meyer, 5372.
...such property so transferred is subject to a levy under a writ of attachment, as though no transfer had been made. Salemonson v. Thompson, 13 N. D. 182, 196, 101 N. W. 320. This is in harmony with the general rule laid down in R. C. L. As said by the Supreme Court of Nebraska, in Westervelt......
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Holden v. Walker
...upon property transferred to defraud creditors is deemed an election * * * to treat the conveyance as void.” Salemonson v. Thompson, 13 N. D. 182, 101 N. W. 320. Under our statutes, section 7537, subd. 4, property may be attached when the defendant has sold the same with intent, not only to......