Trader v. Trader, 5324

• Citation: 48 Idaho 722,285 P. 678
• Decision Date: 06 February 1930
• Docket Number: 5324
• Parties: IDA B. TRADER, Appellant, v. FRANK TRADER and EVERETT TRADER, Respondents
• Court: United States State Supreme Court of Idaho

285 P. 678

48 Idaho 722

IDA B. TRADER, Appellant, v. FRANK TRADER and EVERETT TRADER, Respondents

No. 5324

Supreme Court of Idaho

February 6, 1930

DIVORCE-JOINDER OF FRAUDULENT GUARANTEE OF HUSBAND-TRANSFER OF HUSBAND'S SEPARATE PROPERTY-PLEADING-MOTION TO SEPARATELY STATE CAUSES OF ACTION-WAIVER.

1. In divorce action and in suit for separate maintenance plaintiff may join alleged fraudulent grantee of husband as party defendant and seek to have conveyance set aside.

2. Where complaint alleged sufficient facts to entitle plaintiff to divorce and also alleged defendant husband's ownership of separate property and fraudulent conveyance thereof to co-defendant, for purpose of defeating recovery of alimony it stated but one cause of action.

3. Husband had right to convey his separate property without knowledge or consent of wife, unless such conveyance was with design to defraud wife of right growing out of marital relationship.

4. Where defendant twice demurred to complaint, moved to strike portions thereof and answered to merits, motion more than six months after filing of answer to compel plaintiff to separately state alleged commingled causes of action, came too late since defendant by answering to merits and delaying in interposing motion waived right, if any existed, to relief thereunder.

APPEAL from the District Court of the Fourth Judicial District, for Camas County. Hon. H. F. Ensign, Judge.

Action for divorce. Judgment for defendants. Reversed and remanded.

Reversed and remanded. Costs to appellant.

Frank Croner, for Appellant.

It is too late to file a dilatory plea after pleading to the merits. Where before issue joined no motion has been made to require an election between inconsistent defenses, the objection is waived. (31 Cyc. 164, 719; Dunn v Bozarth, 59 Neb. 244, 80 N.W. 811; Chemung Min. Co. v. Hanley, 9 Idaho 786, 77 P. 226.)

"Third persons--a. In General. When plaintiff also seeks an adjudication of property rights as against defendant and others claiming an adverse interest therein, such persons may be made parties defendant." (19 C. J., p. 99, sec. 235, under "Parties in Divorce.")

"The wife ordinarily brings the action to have the alleged fraudulent conveyance set aside; but a receiver appointed in sequestration proceedings may, with leave of court, bring such an action. The grantees to whom the fraudulent conveyance was made should be joined as defendants in the wife's bill for divorce and alimony, when a fraudulent conveyance is alleged therein." (19 C. J. 320--735.)

"A husband cannot put his separate property out of his hands for the purpose of defeating his wife in an anticipated application for alimony." (Weyer v. Weyer, 40 Cal.App. 765, 182 P. 776; 19 C. J. 318--734, and cases cited thereunder; Bennett v. Bennett, 15 Okla. 286, 81 P. 632, 70 L. R. A. 864.)

"A wife's action for divorce and alimony in which she seeks to have husband's assignment of notes secured by mortgages set aside as fraudulent, is not multifarious . . . . and constitutes but one cause of action, though they are his separate property and not community property."

R. M. Angel and W. A. Brodhead, for Respondents, cite no authorities on points decided.

VARIAN, J. Givens, C. J., Budge and Lee, JJ., and Koelsch, D. J., concur.

OPINION

VARIAN, J.

Plaintiff commenced this action for divorce from Frank Trader on September 23, 1927, making Everett Trader co-defendant, and setting up two causes of action. The first cause of action pleads grounds for divorce for failure to provide, and makes no reference to the co-defendant, Everett Trader. The second cause of action, after pleading the facts upon which plaintiff bases her claim for divorce upon the ground of cruelty, alleges that defendant Frank Trader, at the time of the marriage, was the owner of 400 acres of land, therein described; that during the marriage, said defendant secreted the earnings of said real property, and put the same out of his hands with intent to defraud plaintiff of her rights thereto; that after the marriage of plaintiff and Frank Trader, July 1, 1926, to-wit, on or about the fourteenth day of January, 1927, Frank Trader, with intent to defraud plaintiff of her claim for alimony, etc., and without her knowledge, conveyed said real estate to defendant Everett Trader, without consideration; that said Everett Trader knew of the intent and purpose of Frank Trader, and conspired with him to so get rid of his property in order to defraud plaintiff, etc.

Defendants filed a joint general demurrer to the complaint on October 1, 1927, and on November 7, 1927, without waiving their said demurrer, each filed separate answers to the complaint. On December 9, 1927, the defendants filed an amended demurrer specifically attacking the allegations of fraud, etc., and the joinder of defendant Everett Trader as defendant, and setting forth misjoinder of parties and causes of action. The demurrers were overruled, and motion to strike denied. Thereafter, on May 21, 1928, defendants moved to require plaintiff to separately state "the two causes of action commingled" in the second cause of action. This motion was sustained, and on July 23, 1928, plaintiff declining to amend, judgment of dismissal was entered, from which plaintiff appeals.

The principal question relates to the second cause of action. Does it state two causes of action, one for divorce on the ground of cruelty and the other to set aside a conveyance made in fraud of plaintiff's alleged rights?

As was conceded by counsel on the argument, plaintiff in a divorce action may join the alleged fraudulent grantee of the husband as a party defendant, and seek to have the conveyance set aside in the divorce action. (1 R. C. L., p. 956, sec. 99; 19 C. J., p. 99, sec. 235; 9 Cal. Jur., p. 712, sec. 75; De Ruiter v. De Ruiter, 28 Ind.App. 9, 91 Am. St. 107, 62 N.E. 100; Bennett v. Bennett, 15 Okla. 286, 81 P 632, 70 L. R. A. 864; Masterson v. Ogden, 78 Wash. 644, Ann. Cas. 1914D, 885, 139 P. 654.) And it is likewise so...