Stevens v. Myers

• Decision Date: 27 June 1905
• Parties: STEVENS v. MYERS.
• Court: North Dakota Supreme Court

14 N.D. 398

104 N.W. 529

STEVENS

v.MYERS.

Supreme Court of North Dakota.

June 27, 1905.

Syllabus by the Court.

The specification contained in appellant's statement of case and set out in the opinion calls for a legal conclusion, and not the determination of a question of fact, and does not, therefore, authorize a review of the evidence under section 5630, Rev. Codes 1899.

Under our statute (section 5055, Rev. Codes 1899) a fraudulent intent will not necessarily be conclusively presumed as a matter of law from the fact that a conveyance was made without a valuable consideration, and by one who was at the time insolvent. Under the above section the intent is a question of fact, and not of law.

The absence of a valuable consideration and the insolvency of the grantor are evidentiary, and not ultimate, facts, and will not, when embodied in additional findings, control an express finding that a transfer was made without fraudulent intent.

Appeal from District Court, Grand Forks County; C. J. Fisk, Judge.

Action by Rena Stevens against Charles A. Myers. Judgment for plaintiff, and defendant appeals. Affirmed.

W. J. Mayer, for appellant. Guy C. H. Corliss, for respondent.

YOUNG, J.

The plaintiff brought this action to quiet title to an undivided one-fourth interest in 480 acres of land situated in Grand Forks county, which was conveyed to her by her husband, Richard Stevens, on January 30, 1902. The adverse interest of the defendant arose through the levy of a warrant of attachment upon the land on April 13, 1903, in an action against plaintiff's husband to recover damages for a slander alleged to have been published by him concerning the defendant on January 26, 1902. The defendant alleges that the conveyance to the plaintiff, which was made after the utterance of the alleged slander, “was made fraudulently, and with intent to cheat and defraud his creditors, and particularly this defendant, and to prevent and hinder him in collecting his just claim for damages.” Judgment was entered declaring the attachment proceedings null and void and quieting title in the plaintiff. Defendant has appealed from the judgment.

The statement of case, which was settled pursuant to section 5630, Rev. Codes 1899, under which the case was tried, specifies the following question for review: “Was the transfer of the land here in controversy, made by Richard Stevens to his wife, Rena Stevens, the plaintiff in this action, fraudulent as to this defendant, Charles A. Myers?” Counsel for plaintiff contends that the foregoing specification is insufficient to authorize a review of the evidence. The contention must be sustained. Section 5630, which is our only authority to review evidence in cases tried under that section, requires the appellant to specify in his statement of the case “the questions of fact that he desires the Supreme Court to review,” unless he desires a review of the entire case, in which event he shall so specify. The appellant has not demanded a review of the entire case. He specifies but a single question for review, and that, in our opinion, is not a question of fact within the meaning of the above section, but a question of law. A similar specification was held insufficient in Salemonson v. Thompson, 101 N. W. 320, 13 N. D. ---. In that case the question specified was whether a certain person was a creditor. We said: “The vice in this question is that it does not present for examination and determination on the evidence any particular fact, but, on the contrary, calls for the deduction of a legal conclusion from indefinite and unknown facts. * * * The statute above quoted contemplates that the specification of questions of fact for review in this court shall be sufficiently specific to enable the respondent to determine, for the purpose of amendment, what evidence should be included in the statement upon the controverted question of fact. One could only conjecture as to what evidence or facts the appellant would rely upon to sustain her contention that she was a creditor.” We think the specification in this case is insufficient for the reasons stated in the case just cited. It calls for a legal conclusion. A more liberal rule should not be applied in determining the sufficiency of a specification of facts for retrial under this statute than prevails in testing the sufficiency of pleadings. Fraud “is never sufficiently pleaded except by the statement of the facts upon which the charge is based.” See Bliss on Code Pleading, §§ 211, 339, and note, and cases cited; Maxwell on Code Pleading, 193; Bump on Fraudulent Conveyances, § 28; 9 Encyc. Pl. & Pr. 686, 687, and 688, and cases cited. Also Bump on Fraud, 114. The appellant having failed to demand a review of the entire case, or to specify any particular fact for review, we are without authority to examine the evidence, and all questions of fact must be deemed to have been properly decided.

The only question before us, then, is this: Do the findings of fact sustain the conclusions of law and judgment? This question, in our opinion, must receive an affirmative answer. The trial court found, among other things, “that the said conveyance was made by the said Richard Stevens in good faith, and without any intent on his part to defraud the defendant or any other person, but for the sole purpose of providing the plaintiff with a means of support, the said conveyance being so made by him to plaintiff on the eve, and in anticipation, of the abandonment of plaintiff by her said husband, Richard Stevens, without any just cause or excuse; and that said conveyance was accepted by this plaintiff in good faith, and without any intent on her part to defraud the defendant or any other person, and without any participation by plaintiff in such intent, and without knowledge of any such intent on the part of the said Richard Stevens; and that at the time of accepting said conveyance this plaintiff knew nothing of the defendant or his alleged claim for...