Smith v. Conkwright
| Decision Date | 16 May 1881 |
| Citation | 8 N.W. 876,28 Minn. 23 |
| Parties | Ozias P. Smith v. William T. Conkwright and others |
| Court | Minnesota Supreme Court |
Appeal by defendants from a judgment of the district court for the county of Waseca, Buckham, J., presiding, in an action to have certain conveyances by defendants declared void as against creditors.
Judgment affirmed.
B. S Lewis, for appellants.
The actual intent to hinder and delay creditors must be found as a fact. Murray v. Cason, 15 Mo. 378; Vose v Stickney, 19 Minn. 367. Whether intent to prevent forced sale and sacrifice is such intent depends on the circumstances and other facts found. Burrill on Assignments § 336; Bump on Fraud. Con. 358; Burt v. McKinstry, 4 Minn. 149, (204;) Gere v. Murray, 6 Minn. 213, (305.) A preference may be given and received for the express purpose of defeating an execution, and preventing forced sale and sacrifice. Wilder v. Winne, 6 Cow. 284; Wheaton v. Neville, 19 Cal. 42; Walden v. Murdock, 23 Cal. 540; Reynolds v. Wilkins, 14 Me. 104. To avoid the deed, the intent to hinder and delay, must be found to be fraudulent. Meux v. Howell, 4 East, 1; Hefner v. Metcalf, 1 Head, 577; Wilder v. Fondey, 4 Wend. 100; State v. Benoist, 37 Mo. 500; Dana v. Stanford, 10 Cal. 269; Walden v. Murdock, 23 Cal. 540; Hollister v. Loud, 2 Mich. 310; Burrill on Assignments, § 326; Story's Eq. Jur. § 353.
P. McGovern and Brownell & Kinder, for respondent.
This action was brought to set aside a deed of conveyance of real estate from the defendant William T. Conkwright to the defendant William Conkwright, delivered on the 27th day of August, 1875, as fraudulent and void as against the creditors of the former, and especially as against the plaintiff, and to remove the cloud cast upon the title of said real estate by such deed, in aid of the plaintiff's execution.
The debt which the plaintiff seeks to enforce out of the property originated on the first day of April, 1875; and on the seventh day of August, 1877, the plaintiff commenced an action against William T. Conkwright for the recovery thereof, and on the same day caused the real estate in question to be attached as his property. Judgment having been recovered by the plaintiff, an execution was issued and levied upon the real estate in question, on the 16th day of May, 1878, and the sheriff returned that the defendant in the writ had no other property, real or personal, in his county, subject to levy and sale on execution. On the 19th day of April, 1878, William Conkwright conveyed the premises to the defendant Christian Priem, who had, at the time he received such conveyance and paid the purchase-money therefor, full notice of the plaintiff's rights. The court below found, as conclusions of fact, "that such conveyance was made by said William T. Conkwright, and accepted by the said William Conkwright, to secure said William Conkwright for certain endorsements before that time made by him for the said William T. Conkwright, and to protect the said property so conveyed from forced sale and possible sacrifice at the suit of the creditors of said William T. Conkwright, and with no intent to withdraw the same permanently from the payment of his debts, but with the understanding then had between the parties to said conveyance that the said William Conkwright was to hold the same in trust for his grantor, and that, as fast as money could be realized therefrom, the same should enure to the benefit of said William T. Conkwright, and be by him applied to the payment of his said debts; and that, in pursuance of said understanding, the legal title to said property remained in said William Conkwright till the time of the sale thereof to the defendant Christian Priem, and the proceeds and avails thereof, before and on such sale, were received by the defendant William T. Conkwright, and by him applied to the payment of his debts." The court found, as conclusions of law, that the conveyance from William T. Conkwright to William Conkwright was made to hinder and delay the creditors of said William T., and was void as against the plaintiff, and that the plaintiff was entitled to judgment setting said conveyance aside as against his judgment, and declaring such judgment a lien on the premises superior to the title of the defendant Christian Priem. Judgment was entered accordingly, and an appeal is taken therefrom to this court.
It is objected that the conclusions of law found by the court below are not justified by the conclusions of fact, and this is the real question in the case. This transaction amounts to an attempt, on the part of the debtor, to place his property beyond the reach of the process of his creditors, and, at the same time, to retain control over it and its avails, which may not lawfully be done under the statute against fraudulent conveyances. A debtor's property is by law subject immediately to process issued at the instance of his creditor, and he may not lawfully delay the creditor by any device which leaves it virtually subject to his control and disposition. And it makes no...
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