Smith v. Cleaver
| Decision Date | 26 April 1910 |
| Parties | SMITH v. CLEAVER et al. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Beadle County.
Action by Jennie E. Smith against John A. Cleaver and others. From a judgment for plaintiff and an order denying a new trial defendants appeal. Affirmed.
Henry C. Hinckley and W. A. Lynch, for appellants.
Sterling & Clark and Crawford, Taylor & Fairbank, for respondent.
This is an appeal from a judgment for plaintiff and from an order overruling defendant's motion for a new trial. The action is on the equity side of the court; the plaintiff seeking relief against the defendants Cleaver and Lapier and one Chas. E. Young, as sheriff of Beadle county. Plaintiff seeks to enjoin the sale of a certain quarter section of land under an execution issued upon a judgment in favor of Cleaver and Lapier against F. M. Smith, her husband. The action was tried by the court, who made findings of fact and conclusions of law, and entered a judgment awarding plaintiff the relief prayed for. The assignments of error are very numerous, a large number of them relating to rulings by the trial court on questions of evidence. We have given these various rulings careful consideration, and are of opinion that none of them are prejudicial to appellants' rights or would warrant a reversal of the case. A review of the several rulings would serve no useful purpose, and we shall not attempt it. The other questions presented relate to the refusal of the court to make findings requested by appellants, and also the alleged failure of the court in the findings adopted to cover material issues.
The complaint alleges, in substance: That the defendants Cleaver and Lapier were partners doing business under the firm name of Cleaver & Lapier, and that the defendant Chas. E. Young was sheriff of Beadle county. That on the 18th day of March 1907, in an action in the circuit court of Beadle county, the defendants Cleaver and Lapier recovered against F. M. Smith husband of plaintiff, a judgment in the sum of $872.94. That on the 15th day of October, 1907, an execution was issued upon said judgment and delivered to the defendant Young as sheriff, which was levied upon a certain quarter section of land, which is the property of the plaintiff and has given notice of the sale of said property March 19, 1907. Plaintiff specifically alleges that said F. M. Smith was not at the time of the entry of said judgment nor at the time of such levy and notice, and never was, the owner of said quarter section of land; that plaintiff is and was at the time of said levy and judgment, and for a long time prior thereto, the owner in fee simple of said land; and that the judgment against F. M. Smith is not a lien upon same, and that the defendant Young as sheriff is without right or authority to levy upon or sell the same. Plaintiff further alleges that she became the owner of said land about the 2d day of July, 1901, by purchase from one Alexander, and that her purchase was made in good faith for a consideration paid by her out of her own money, and that title thereto was taken in the name of said F. M. Smith by a deed, which was recorded in the office of the register of deeds of said county on August 19, 1901. Plaintiff further alleges that on the 17th day of September, 1901, the said F. M. Smith by a warranty deed duly transferred the land levied upon, together with other lands, to this plaintiff, and that said conveyance was duly made pursuant to the original understanding between her husband and herself that all of said property belonged to her; that the deed from said F. M. Smith to plaintiff was recorded in Beadle county on the 15th day of September, 1907, long prior to the judgment of Cleaver and Lapier against the said F. M. Smith; and that the delay in recording said deed was due wholly to forgetfulness and inadvertence on her part. Plaintiff further alleges that, unless restrained by an order of the court, defendant Young will sell said premises for the purpose of satisfying said judgment and execution against F. M. Smith, and that such sale will cause irreparable loss to the plaintiff and create a cloud upon her title, and that she has no adequate remedy at law. Plaintiff demands judgment that the defendants have no authority to cause said premises to be sold in satisfaction of said judgment for an order and judgment; that the defendants and each of them be enjoined and restrained from selling said premises; and that the title of plaintiff be quieted against any and all claims of defendants Cleaver and Lapier; also for general relief.
Defendants by their answer admit the issuance and levy of the execution upon the lands described in the complaint, but deny that plaintiff is the owner of said land or has any title thereto, or that she was ever the owner thereof, but allege that her husband, said F. M. Smith, is and was at all times mentioned the lawful and rightful owner thereof, deny that the plaintiff paid for said lands out of her own money, but allege that the deed from the said F. M. Smith to plaintiff was executed and placed of record with the sole intent of defrauding, hindering, and delaying the creditors of plaintiff's husband, and more especially the defendants Cleaver & Lapier in the collection of their judgment against the said F. M. Smith. Defendants further allege that the said F. M. Smith early in 1901 purchased with his own money a tract of land in Beadle county, aggregating more than 1,200 acres, for a consideration of about $12,000, and that the land described in the complaint is part of the land so purchased; that title to all of said land was taken in the name of F. M. Smith, and the deeds therefor placed of record in Beadle county; that the title to said lands remained in F. M. Smith, until August 8, 1906, when there was filed for record a deed from him and the plaintiff his wife to one Ennenga for 800 acres of said land, which lands defendants Cleaver and Lapier had sold to said Ennenga under a written contract with F. M. Smith, in which said Smith represented and alleged himself to be the owner of said 800 acres; that on February 15, 1907, said Smith caused to be filed for record in the register of deeds office a deed from himself to his wife, purporting to have been executed December 7, 1901, of said 800 acres, also a deed of other lands, including the land described in plaintiff's complaint, for a consideration of $9,800; that on February 15, 1907, there was filed for record in said office another deed from said F. M. Smith to plaintiff conveying other lands; that the two conveyances last above mentioned were fraudulent and void. Defendants allege that upon said sale of 800 acres said Ennenga executed and delivered to said F. M. Smith notes and mortgage to secure a large amount of the unpaid purchase price thereof, which on February 15, 1907, he assigned to the plaintiff, which assignment was fraudulent, and made with intent to cheat and defraud creditors of said F. M. Smith, and particularly the defendants Cleaver and Lapier, all of which plaintiff well knew. Defendants further allege that said F. M. Smith caused the said lands to be stocked with cattle and other stock, and cultivated portions thereof, and exercised full and complete ownership over all of said lands; that he made leases thereof in his own name, disposed of the products of said land and the stock raised thereon as his own property, and that during all of said time plaintiff, his wife, was living at Vermilion in said state, and in no manner, either by word or deed, claimed or represented herself to be the owner of said land or any part thereof, and allowed her husband to hold himself out to these defendants and the public as owner of said lands, including the land referred to in the complaint; that on February 28, 1906, said F. M. Smith entered into a written contract with the defendants Cleaver and Lapier authorizing them to sell said 800 acres, stating in said contract that he was the owner thereof; that defendants sold said 800 acres under said contract, and said Smith and his wife, the plaintiff, conveyed the same to defendant's buyer, George Ennenga; that said Smith failed to pay defendants the amount due as commission for making said sale; and that the judgment against said F. M. Smith was for the said commission. The defendants further allege that the said F. M. Smith on February 28, 1906, entered into another contract with Cleaver and Lapier for the sale of the land described in plaintiff's complaint, wherein he represented himself to be the owner of said land, and authorized these defendants to make sale thereof; that during all of said time the record title thereof remained in F. M. Smith, as plaintiff well knew; and that plaintiff knew her husband, F. M. Smith, had entered into said contract, and that the defendants Cleaver and Lapier were rendering services in and endeavoring to sell said land as the land of her said husband, and knew that defendants obtained the purchaser and made the sale of said 800-acre tract, and during all of said time failed to announce to the defendants her ownership of said lands or any portion thereof, and did absolutely nothing in the way of exercising ownership of said lands, and did not pay the taxes or receive the proceeds of products thereon, but permitted her husband during all of said time to represent himself as the owner of said lands.
Appellant's proposed findings of fact which were refused by the court follow very closely the allegations of the answer, as above set forth. It will be observed that the theory of appellant's answer is that the deed from F. M. Smith to the plaintiff was fraudulent and without consideration; that the lands were paid for by him, and not by the wife; that the deed...
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