State Bank of Gibbon v. Walter
| Decision Date | 09 April 1926 |
| Docket Number | 25,121 |
| Citation | 208 N.W. 423,167 Minn. 37 |
| Parties | STATE BANK OF GIBBON v. THEODORE O. WALTER |
| Court | Minnesota Supreme Court |
Action in the district court for Renville county to set aside a conveyance as fraudulent as to plaintiff, a creditor. The case was tried before Baker, J., who ordered judgment in favor of plaintiff. Defendant appealed from an order denying his motion for a new trial. Affirmed.
Weight given in supreme court to findings based on testimony not given in presence of court.
1. This court under established practice must give the same effect to findings of the trial court made upon depositions or stipulated testimony as upon testimony given by witnesses orally in the presence of the court.
Finding sustained that conveyance was in fraud of creditor.
2. The finding herein to the effect that defendant as grantee received a deed from his brother, grantor, without consideration and with the fraudulent intent on the part of both to hinder and delay plaintiff, a creditor of the grantor, is sufficiently supported.
Appeal and Error, 4 C.J. p. 889 n. 88.
Murrary & Baker and G. A. & C. H. McKenzie, for appellant.
Young & Quandt, for respondent.
Action to set aside a conveyance fraudulent as to plaintiff, a creditor. Findings in favor of plaintiff, and defendant appeals from the order denying him a new trial.
S. A Walter, a brother of defendant, was indebted to plaintiff on a $2,500 promissory note. Subsequent to its execution and during the pendency of litigation concerning the same, the conveyance herein sought to be set aside was made by S. A Walter to defendant. Plaintiff obtained judgment upon the note against S. A. Walter, and in supplementary proceedings therein both the judgment debtor and this defendant, the grantee in the conveyance, testified, as well as certain other witnesses, and by stipulation the case was submitted for decision upon the testimony thus taken and that of one other witness heard in court.
Because the trial court did not have the witnesses before him, we are urged to regard the case as a trial de novo, or at least not to give the usual weight to the findings. Established practice of this court is to view the findings in such a case the same as if all the witnesses had testified in the presence and hearing of the trial court. Humphrey v. Havens, 12 Minn. 196 (298); Treat v. Kellogg, 104 Minn. 54, 115 N.W. 947; Wunder v. Turner, 120 Minn. 13, 138 N.W. 770; Freeburg v. Honemann, 126 Minn. 52, 147 N.W. 827.
The close relationship between grantor and grantee; the attempt at secrecy by not having the scrivener usually employed by the grantor in his home town to draw instruments of that kind, but going to one in another place; the improbability that defendant was not aware of his brother's litigation concerning the promissory note mentioned; the nonproduction of the pretended promissory notes claimed to evidence the alleged debt, of many years standing, that were to serve as the consideration for the conveyance; the inadequacy of the consideration stated in the deed; the near coincidence in time of the grantor's abandoning the litigation in respect to the $2,500 note and the making of the deed to defendant; the disposing by the grantor of all property out of which plaintiff might try to collect the debt; the indefinite...
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