Toomay v. Graham
| Decision Date | 05 May 1941 |
| Docket Number | 19853 |
| Citation | 151 S.W.2d 119 |
| Parties | J. W. Toomay, Appellant, v. Henry N. Graham, Mary Graham and Fred Burnett, Respondents |
| Court | Kansas Court of Appeals |
APPEAL FROM CALDWELL CIRCUIT COURT.
The judgment is reversed and the cause remanded, with directions to the chancellor to render a decree sustaining plaintiff's bill.
This is a suit in equity seeking to have set aside, on the ground of fraud, an assignment of personal property. The chancellor found the issues for the defendant. Plaintiff has appealed.
The case was originally brought against Henry N. Graham, Mary Graham and Fred Burnett, but plaintiff amended his petition so as to leave the defendant, Fred Burnett, the sole party defendant.
The facts show that plaintiff, on January 21, 1937, foreclosed a deed of trust securing a promissory note, executed by Henry N. Graham and Mary Graham, his wife, upon their farm consisting of 115 acres located in Ray County. The property failed to sell for enough money to discharge the debt and, on February 13, 1937, plaintiff brought a suit against the Grahams for the unpaid balance due upon it. On the same day the Grahams were personally served with summons but did not defend the suit. On the 19th day of March 1937, plaintiff obtained a deficiency judgment for $ 3035.30, together with § 300.00 attorneys fees. A writ of execution was sued out and returned unsatisfied.
The assignment in question was made on the 16th day of February 1937, within three days after the filing of the suit. The assignment recited as a consideration therefor "$ 400.00 and other valuable considerations." It purported to transfer and assign all of the interest of the said Henry N Graham in the estate of his brother who, on July 26, 1936 had died in the State of California. The brother was a single man and left a will bequeathing, generally, all of his property to his brothers and sisters. Said Graham's part of the estate consisted of $ 756.31 in cash, and 50 shares of the preferred stock of the Pacific Gas & Electric Company. It was agreed at the trial that the value of the stock is $ 1250.00.
The assignment was made by Graham to his son-in-law, the defendant, Burnett, who claims that it was for past considerations in the way of sums of money furnished, over a period of sixteen years, to Graham and his wife following the marriage of their daughter to the defendant, and a funeral bill, which defendant paid for the burial of their daughter in the sum of $ 496.96.
All of the witnesses who testified in the case were called by the plaintiff. Defendant introduced no evidence. Plaintiff, himself, testified to the indebtedness, but to no facts bearing on the assignment.
Henry N. Graham testified that he and his wife had lived upon the farm, upon which the deed of trust in question had been given, and that defendant lived in the same county some miles distant; that the assignment was made in Richmond and was drawn up by an attorney there; that it was made at the suggestion of the witness; that the defendant came to the home of the witness and they went to the attorney's office in defendant's car; that the consideration of $ 400.00 mentioned in the assignment had reference to the funeral expenses paid by the defendant for the burial of the witness' daughter; that he "expected' that the defendant had given him more than $ 400.00 at different times; that he did not remember when defendant first gave him money; that it was after the daughter of the witness was married to defendant; that he gave the witness some money shortly after that, he could not say how much: "Well, every time I needed a little money, I went and got it"; that he made no record of it; that he put down no dates; that he had no writing or any kind to show that he owed the defendant; that defendant did not hold his note or any other paper showing that the witness owed him money; that at the time of the assignment was made defendant had never asked him "for any of this money"; that defendant had never said anything to the witness about it; that before they went to Richmond to make the assignment he told the defendant "whenever I got any money I was going to pay him because he come first"; that he did not know how long it was before he went to Richmond that he made this statement: "It wasn't very long". He further testified that he did not know how much he owed the defendant but ; that he could not give the court any idea of how much he owed the defendant; that he did not think the wife of the witness kept any record; that the money he got from the defendant was always "cash"; that he could not say how much he ever got at any one time. Asked, if at any time it was $ 50.00, he testified: "I expect he did". Asked if defendant gave him $ 100 at any time, he replied in the affirmative. Asked if he had intended to repay defendant, he replied: "Yes, sir, I told him as sure as I got the money I was going to pay him first"; that he did not know whether the defendant ever kept any record of the indebtedness; that he never told the witness that he did. .
He further testified: "I didn't have anything after I made the assignment", with which to pay plaintiff's judgment; that he had two horses which the defendant sold; that the assignment left him insolvent; that he could not tell the number of times the defendant had given or advanced him money; that when he first mentioned the assignment to the defendant he told the latter he wanted to pay what he owed him; that he said nothing about owing the plaintiff at that time; that at that time he had made an application for an old age pension of $ 16.00 per month. He further testified: Q. Do you have any idea how much you owed Fred at the time you make this assignment? A. No, I don't know. Q. You never had any idea? A. No."
On cross-examination, he testified, that defendant had been giving him money starting about the time defendant married his daughter. He further testified that he used the money that the defendant gave him to pay living expenses, interest and taxes; that in some years he did not get very much off of the farm.
Mary Graham testified that the defendant would come to the Graham farm "every two or three weeks"; that she supposed that she had talked to the defendant and his wife about Mr Graham's inheritance from his brother; that she kept no record of the money the defendant furnished her husband and herself; that he gave them money (cash) "when we needed it"; that she gave him no note and did not write it down on the calendar; that she "always said when we got it we could pay them, if we ever got anything"; that she did not know how much her husband was expecting to get from his brother's estate. " ; that she and her husband made barely enough to pay their living expenses when they lived on the farm in question; that she had never talked to her daughter and the defendant about plaintiff's judgment; that she did not know that plaintiff had a note "against us"; that she "supposed" that she talked to defendant after the sheriff "was down there". ; that the assignment her husband made to the defendant covered all he (her husband) had. ...
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