Samuel v. Kittinger

• Decision Date: 29 April 1893
• Citation: 33 P. 509,6 Wash. 261
• Parties: SAMUEL v. KITTINGER ET AL.[1]
• Court: Washington Supreme Court

33 P. 509

6 Wash. 261

SAMUEL v. KITTINGER ET AL.^[1]

Supreme Court of Washington

April 29, 1893

Appeal from superior court, King county; I. J. Lichtenberg, Judge.

Action by L. Samuel against Charles H. Kittinger and others to set aside certain conveyances as in fraud of creditors. From a judgment for defendants, plaintiff appeals. Affirmed.

Allen &amp Powell, for appellant.

Preston Carr & Preston and W. R. Bell, (E. F. Blaine, of counsel,) for respondents.

ANDERS, J.

On March 16, 1891, the appellant obtained a judgment against the respondent Charles H. Kittinger in the superior court of King county, for the sum of $2,233.87, and costs. Executions were issued, and returned by the sheriff unsatisfied, and thereupon the appellant brought this action against the respondents, alleging in his complaint the rendition of his judgment, and the issuing and return of execution thereon, as above stated, and that after the said Charles H. Kittinger contracted the debt upon which the said judgment was rendered, and after the maturity thereof, he, on the 20th day of June, 1890, pretended to transfer and convey, by deed, to the respondent Van Tuyl, a large number of town lots and blocks in Irondale addition to the town of Kirkland, in King county, and state of Washington, and described in the complaint; that afterwards, and on January 8, 1891, the said Charles H. Kittinger pretended to transfer and convey, by deed, to the said Van Tuyl, certain other described town lots situated in Jackson and Ranier Street addition to the city of Seattle, in said county of King; that on or about September 16, 1889, the said Kittinger pretended to transfer and convey, by deed, to the respondents George B. Kittinger and Mary C. Kittinger, his wife, certain described real estate situated in said county and state; that the said Kittinger on the 8th day of January, 1891, pretended to transfer and convey, by deed, certain real estate described in the complaint, and situated in King county, to the respondent C. S. Preston; that the said pretended transfers were made without consideration, and in pursuance of a conspiracy between the said Charles H. Kittinger and the said several grantees, with intent to hinder, delay, and defraud the plaintiff and other creditors of said Kittinger, and in secret trust for the use of said Kittinger; that the said Charles H. Kittinger had not at the time of said conveyances, nor at the time of either of them, sufficient property remaining subject to execution to pay all of his just debts, and that by said conveyances he rendered himself wholly insolvent, and has not now, nor has at any time since said conveyances, had sufficient property subject to execution out of which said judgment could be made, and that the said transfers, and each and every thereof, were made with full knowledge on the part of said grantees of the insolvency of the said Kittinger, and with the intent to hinder, delay, and defraud the plaintiff; that said Kittinger has equitable interests, things in action, and other property which cannot be reached by execution, and the exact character and form of which is unknown to the plaintiff, and the knowledge of which is wholly within the conscience of said Kittinger, and that he also has debts due him from persons unknown to the plaintiff; that said Kittinger has not any property other than that embraced in said conveyances, and the equitable interests, things in action, and other property which cannot be reached by execution, and the debts due him as aforesaid, out of which the said judgment could be satisfied in whole or in part. And the prayer of the complaint is that said transfers be declared fraudulent and void as against the plaintiff; and that the lands described in the several deeds of conveyance be decreed to be subject to the lien of the plaintiff's judgment; and that the said Charles H. Kittinger be adjudged to pay the plaintiff's judgment out of said equitable interests, things in action, and other property which cannot be reached by execution, and debts due him, and all property held in trust for him, or in which he is in any way or manner beneficially interested; and that the said Kittinger be enjoined from transferring the property pending the suit; and that a receiver of all the property which cannot be reached upon execution be appointed, with authority and instructions to sell the same, and apply the proceeds thereof to the payment of plaintiff's judgment. The respondents filed separate answers, admitting that the property described in the complaint was conveyed to the respective parties therein mentioned, at the times specified, but denying all other allegations of the complaint, except that the appellant commenced an action in the superior court, and obtained a judgment therein against Charles H. Kittinger, and the return of execution thereon unsatisfied, as alleged in the complaint. Upon the issues thus framed, the cause proceeded to trial; and after the plaintiff had introduced his testimony, and rested his case, the defendants moved the court to dismiss the action, on the ground that the evidence was insufficient to sustain the allegations of the complaint. The motion was granted by the court, and judgment rendered in favor of the defendants for costs, from which the plaintiff appealed to this court.

The appellant insists that the ruling of the court is erroneous, and whether or not his contention is tenable can only be determined by a review of the evidence in the record. The burden of proving the fraudulent intent alleged was upon the appellant; and, as he was opposed at the outset by the presumption of honesty and legality that prevails in favor of the ordinary business transactions among men, it was incumbent upon him to prove by clear and satisfactory evidence that the conveyances which he assailed were in reality fraudulent and void as to him, (Bump, Fraud. Conv. [3d Ed.] 600, 604, 605, and cases cited; Wagner v. Law, 3 Wash. St. 500, 28 P. 1109, and 29 P. 927;) and, if he has not done so, the action was rightfully dismissed. It will be observed by an examination of the complaint that the action is divisible into as many distinct branches as there are respondents and transfers; and we will therefore first examine the evidence adduced by the appellant which is specially applicable to each of the transfers, as if that particular branch of the case stood alone, and afterwards consider that which is pertinent to the case as a whole.

As to the transfer of the lots in Irondale addition to Kirkland to Van Tuyl, the facts, as disclosed by the testimony of appellant's witness, are briefly as follows: Some time before the execution of the deed to Van Tuyl, the respondent Charles H. Kittinger, together with three other individuals purchased an 80-acre tract of land near Kirkland, and subdivided it into lots and blocks, and platted it as a town plat. They borrowed the money used in the purchase from the banking house of Dexter, Horton & Co., and gave the bank, or one of its officers for it, their note and a mortgage on the property to secure the payment thereof. The title from their vendor was taken in the name of C. H. Kittinger, by agreement between the parties interested. On June 20, 1890, in order to remove the mortgage, and thereby facilitate the transfer of lots, and at the same time...