Wetherill v. Canney

• Decision Date: 04 November 1895
• Docket Number: Nos. 9509 - (60).,s. 9509 - (60).
• Citation: 62 Minn. 341
• Parties: ROBERT WETHERILL v. FRED N. CANNEY and Others.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

Page 341

62 Minn. 341

ROBERT WETHERILL v. FRED N. CANNEY and Others.¹

Nos. 9509 - (60).

Supreme Court of Minnesota.

November 4, 1895.

Appeal by defendants from an order of the district court for Hennepin county, Hicks, J., denying a motion for a new trial. Remanded with directions to enter judgment for defendants.

Welch & Hayne, for appellants.

Roberts & Sweet, for respondent.

START, C. J.

Action to set aside a deed of certain real estate made by the defendants Thomas J. and Julia A. Canney to the defendant Fred N. Canney, as fraudulent as to creditors. Trial by the court without a jury, and judgment ordered for the plaintiff, adjudging the deed fraudulent as to him, and from an order denying their motion for a new trial the defendants appealed.

The here material facts found by the court were substantially as follows: That on February 3, 1890, the defendant Thomas J. Canney and his wife, Julia A., in consideration of a loan of $20,000, executed their promissory note for that amount to the plaintiff, and at the same time secured its payment on two lots in Ridgewood addition to Minneapolis. That the lots were then owned by Thomas J., and were free from all incumbrances of every kind except the mortgage to the plaintiff, and he continued to be such owner until after the making of the deed in question. That the lots were at the time of the execution of such deed of the fair market value of $25,000. That on November 12, 1892, the defendants Thomas J. and Julia A. executed to the defendant Fred N., their son, a deed duly recorded November 15, 1892, in form conveying to him certain lots in Cottage City and in Menage's Third addition to Minneapolis, and a tract of 40 acres in section 13, township 28, range 24, in the county of Hennepin, and of the aggregate value of $5,000. That the record title to the 40-acre tract was then in the name of Julia A., but prior to December 23, 1891, Thomas J. was the sole owner thereof, and on that day caused it to be conveyed, without consideration, to Julia A. That the balance of the real estate so conveyed to Fred N. was, at the time the deed was made to him, owned by Thomas J., and unincumbered. That Julia A. was insolvent when the deed was made to her son. That the sole consideration for the execution of the deed from Thomas J. and Julia A. to Fred N. was the following agreement:

"In consideration of the conveyance to me by Julia A. Canney and Thomas J. Canney, her husband, who are my father and mother, by deed dated November 2, 1892, and recorded in the office of the register of deeds of Hennepin county, Minnesota, in Book 374 of Deeds, page 145, to which reference is made for a particular description of the lands thereby conveyed, I do hereby release and discharge said Julia A. Canney and Thomas J. Canney, and each of them, of and from all claims and demands whatsoever, arising or growing out of services performed by me for them, or either of them, since I attained my majority, no settlement or accounting of the same ever having been made between us, and said services so performed amounting to a considerable sum and covering a period of about fifteen years. And do further covenant and agree to and with said Julia A. Canney and Thomas J. Canney as further consideration for said conveyance that I will, during the natural lives of each of them, provide and supply to them and each of them the necessary means and provisions for their comfortable support and maintenance at all times, and whenever by reason of old age or infirmity or otherwise they or either of them become unable to provide for themselves; and I further covenant and agree that the failure on my part in the performance of the terms and conditions of this agreement shall operate to avoid said conveyance for all purposes whatsoever, and revest the title to the said premises in said Julia A. Canney and Thomas J. Canney absolutely and to all intents and purposes the same as though said conveyance had never been made to me, and I further covenant and agree that the said Thomas J. Canney and Julia A. Canney shall have the right, so long as they may desire to exercise the same, to have one-half of the hay grown on the forty-acre tract of land conveyed by said conveyance for their own use; and I further agree to faithfully and fully perform the terms and conditions hereof at all times, and the covenants herein contained shall bind my heirs, personal representatives and assigns."

That the services referred to in this agreement consisted of various kinds of services rendered by Fred N. after he was 21 years old to his father, at different times and extending over a period of 15 years, without any agreement made by the father to pay for them; but there was an understanding between the father and son that at some time the son should be rewarded for any services rendered to his parents. That the evidence as to the value of the services was so indefinite that the court was unable to find what the services so performed were reasonably worth, and the amount of the payments thereon could not be fixed from the evidence, and therefore the court was unable to find whether or not Fred N. had been paid in full for such services prior to the making of the deed to him. That, at the time the deed was made to him, his parents, the grantors, were not indebted in any sum whatever except upon their mortgage note to the plaintiff. "That there was no evidence showing any actual design upon the part of any of the defendants in said transaction to place the property beyond the reach of creditors, and the only fraud in the transaction is such as the law will presume from the transaction itself, and the attendant circumstances. But the court finds that, from all the facts disclosed by the evidence, the transaction in law is presumed to be fraudulent as to this plaintiff." The court further found that the plaintiff recovered judgment on July 22, 1893, against the defendants Thomas J. and Julia A. upon their mortgage note to him in the sum of $22,167.57, and on July 28 an execution was duly issued on the judgment, and returned unsatisfied on August 4; that on January 2, 1894, plaintiff foreclosed his mortgage by advertisement, and the mortgaged premises were sold at the foreclosure sale to the plaintiff for $20,000; that...