Shelby v. Ziegler
| Decision Date | 21 December 1908 |
| Parties | SHELBY et al. v. ZIEGLER. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
A judgment on a motion to discharge an attachment, on the ground that the property seized under such writ was exempt is not res judicata in a subsequent direct proceeding in another action brought to subject the property to the judgment rendered in the action in which such attachment writ was issued.
[Ed Note.-For other cases, see Judgment, Cent. Dig. § 1160; Dec Dig. § 653. [*] ]
After the receiver's final receipt or certificate has been issued, the homestead, under Act Cong. May 20, 1862, c. 75, § 4, 12 Stat. 394, Rev. St. U.S.C. 5, § 2296 (U. S. Comp. St 1901, p. 1398), is not exempt as against an execution, or other proceedings, on a judgment for tort, independent of any contract, rendered on a date subsequent to the issuance and delivery of such receipt or certificate.
[Ed Note.-For other cases, see Homestead, Cent. Dig. § 160; Dec. Dig. § 100. [*] ]
The exemption from liability for debts, as provided by section 2296, supra, no longer applies to such homestead, after final proof has been made and receiver's final certificate has been issued therefor.
[Ed. Note.-For other cases, see Homestead, Cent. Dig. § 136; Dec. Dig. § 94. [*] ]
Quaere: Can a judgment be reviewed in this court where there is no motion for a new trial filed in the nisi prius court; the record showing that the case, by consent of both parties, was submitted to the court without the intervention of a jury, upon motion for judgment on the pleadings and certain admitted facts?
A deed executed by a party who is insolvent, the liability then existing on which an action to set aside such conveyance is based, the consideration for the deed on the part of the grantee being his promise to support and maintain the grantor during his natural life, is in legal effect a conveyance of property to the grantee by the grantor in trust for himself, and is fraudulent and void as to existing creditors of the grantor.
[Ed. Note.-For other cases, see Fraudulent Conveyances, Cent. Dig. § 138; Dec. Dig. § 61. [*]]
The plaintiff in an action for a tort committed, independent of any contract, is a "creditor," so as to entitle him to maintain an action under section 906, Wilson's Rev. & Ann. St. 1903, to have canceled and set aside a conveyance of real estate, or any interest therein, made for the purpose of hindering, delaying, or defrauding creditors.
[Ed. Note.-For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 641, 642; Dec. Dig. § 215. [*]
For other definitions, see Words and Phrases, vol. 2, pp. 1713-1726; vol. 8, pp. 7622, 7623.]
Error from District Court, Kay County.
Action by George Ziegler against Samuel O. Shelby and another. Judgment for plaintiff, and defendants bring error. Affirmed.
On the 12th day of November, A. D. 1906, the defendant in error, as plaintiff, instituted an action in the lower court against Samuel O. Shelby and Adam F. Sitton, the plaintiffs in error, as defendants, alleging: That on the 26th day of November, A. D. 1904, said plaintiff filed his petition in the district court of Kay county, Oklahoma Territory, wherein he was plaintiff and Samuel O. Shelby was defendant, declaring in damages against said defendant for an assault and battery, in the sum of $5,000, and on the 28th day of September, A. D. 1905, said plaintiff obtained a verdict in said cause against said defendant in the sum of $1,250, and the costs therein expended in the sum of $75.40, and that judgment was accordingly rendered in said court thereon in favor of said plaintiff and against said defendant, and said plaintiff was then and there the owner of said judgment. That on the 23d day of October, A. D. 1905, the plaintiff caused an execution to issue thereon against the said defendant, which was duly returned nulla bona. And, further, that said defendants, Samuel O. Shelby and Adam F. Sitton, with intent, purpose, and design, fraudulently and connivingly caused to be made and delivered on the 19th day of September, A. D. 1905, by the said Shelby to the said Sitton, a certain general warranty deed, conveying the N.W. 1/4 of section 32, township 28 N., range 2 E. of the Indian Meridian, in said county, containing 160 acres of land, more or less, and on the 28th day of September, A. D. 1905, the said deed was offered for record in the office of the recorder of deeds of said county by the said defendant, Shelby; the consideration therefor being, to wit, the maintenance and furnishing all necessaries during the life of the grantor. That said conveyance was made by both the grantee and grantor in anticipation and apprehension of the rendition of said judgment against said Shelby, and was fraudulently, designedly, and connivingly made by said parties for the sole, express, and fraudulent purpose of hindering, delaying, and defeating plaintiff's claim by virtue of said judgment. That at the time said conveyance purports to have been made, and ever since said date, said defendant, Samuel O. Shelby, has had no other or further property which could have been or can be subjected to the payment of said judgment obtained in said action, and that such was well and truly known to the defendant, Sitton, at the time said conveyance was executed and delivered to him. That said land is worth a sum over and above all liens thereon in an amount sufficient to fully satisfy plaintiff's judgment. Then follows the prayer for the cancellation of said deed and the subjecting of said land to the satisfaction of said judgment.
On the 30th day of March, A. D. 1906, said defendants filed in said cause their plea, in the nature of a plea in bar, wherein they substantially set out the facts as to said action begun on the 26th day of November, A. D. 1904, and that on said date said plaintiff duly filed his affidavit in attachment and caused to be issued in said cause an order of attachment, which was levied on said land as the property of the defendant, Samuel O. Shelby, which was duly appraised in accordance with law; that on the 28th day of March, A. D. 1905, said Shelby, as defendant in said cause, filed in said court his motion to dissolve and discharge said attachment, and said motion was duly heard on the 3d day of April, A. D. 1905, and the same was discharged, on the ground, as the court held and concluded, that said land was exempt from the liability alleged to have been incurred by the said Samuel O. Shelby to the said plaintiff, George Ziegler, in said cause; that said judgment on the motion that said attachment be dissolved is a final judgment; and that all the matters and things sought to be litigated by the plaintiff herein, which are material in determining the rights of the plaintiff, have been and are fully and completely determined and adjudicated by the judgment of the court in its action on said motion. On the 6th day of April, A. D. 1906, the court sustained a demurrer to said plea in the nature of a plea in bar, to which action the defendant duly saved his exceptions. On the 16th day of April, A. D. 1906, said defendants filed answer, wherein they denied each and every allegation of plaintiff's petition not therein specifically admitted. They admit that on the 26th day of November, A. D. 1904, the plaintiff filed his petition in the district court of Kay county, Oklahoma Territory, against Samuel O. Shelby, one of the defendants, and that the allegations in plaintiff's petition are substantially as charged in plaintiff's petition in said cause. They further admitted: That on the 28th day of September, A. D. 1905, the plaintiff obtained a judgment against the defendant, Samuel O. Shelby, in the sum of $1,250 and costs, and that said judgment was a valid, subsisting, and final judgment; that on the 23d day of October, A. D. 1905, the plaintiff caused execution to issue on said judgment, which was returned nulla bona; and that the defendant, Samuel O. Shelby, executed to Adam F. Sitton, his codefendant, the deed as alleged in plaintiff's petition.
Defendants allege: That said land which the plaintiff seeks to have applied to the payment of said judgment against said Shelby was on the 14th day of July, A. D. 1904, and for two months thereafter, government land upon which the defendant, Samuel O. Shelby, had his homestead entry; but that the legal title in and to said land was on said date in the United States of America, and no patent had issued for said land until the 3d day of April, A. D. 1906, on which date patent for said land was issued by the United States to the defendant, Samuel O. Shelby; that on the 14th day of September, A. D. 1904, the receiver's final receipt issued to said Shelby for said land; that said defendant, Samuel O. Shelby, was, and had been during all the times above set forth, a resident of Kay county, Oklahoma Territory; that the liability on which the judgment was rendered against the defendant, Samuel O. Shelby, on the 28th day of September, A. D. 1904, and long prior to the date of the issuance of the patent by the United States of America to the said defendant, Samuel O. Shelby, and while the title to said land was in the United States; that said land was not liable for the satisfaction of said judgment, for the reason that the liability accrued long prior to the issuance of the patent therefor.
Thereafter the plaintiff demurred to all that portion of the defendants' answer, except the general denial and admissions therein, upon the ground that the facts stated were not sufficient to constitute a defense in favor of defendants and against the plaintiff. On the 6th day of October, A. D. 1906, the court sustained the plaintiff's demurrer to the answer of the defendants, to which exceptions were duly...
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