Ziska v. Ziska
| Decision Date | 13 April 1908 |
| Citation | 95 P. 254,20 Okla. 634,1908 OK 60 |
| Parties | ZISKA v. ZISKA et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
In the absence of laches, in obtaining judgment, a suit to set aside a conveyance as fraudulent begun within two years after recovery of such judgment is not barred by virtue of the provisions of section 4216, Wilson's Rev. & Ann. St. Okl 1903, which provides that actions for relief on the ground of fraud, can only be brought within two years after the discovery, and this notwithstanding the fact that the conveyance in question was made more than two years prior to the institution of such suit. Plaintiff's cause of action does not accrue until recovery of a judgment.
[Ed Note.-For cases in point, see Cent. Dig. vol. 24, Fraudulent Conveyances,§ 733.]
Where an attachment is levied upon real estate as the property of a nonresident defendant, although title to the same stands in the name of another, the attaching creditor acquires a lien upon any interest debtor may have in such land, which he may enforce after judgment, in a suit in the nature of a creditors' bill, and in such a case the petition need not aver execution issued and returned nulla bona; it being sufficient to aver in appropriate language the lack of any other available assets.
[Ed Note.-For cases in point, see Cent. Dig. vol. 14 Creditors' Suit, § 161.]
A demurrer to the evidence admits all the facts which the evidence in the slightest degree tends to prove, and all the, inferences or conclusions which may be reasonably and logically drawn from the evidence. On a demurrer to the evidence the court cannot weigh conflicting evidence, but will treat the evidence as withdrawn which is most favorable to the demurrer.
[Ed. Note.-For cases in point, see Cent. Dig, vol. 46, Trial, §§ 352-354.]
Error from District Court, Canadian County; C. F. Irwin, Trial Judge.
Action by Katherine Ziska against F. R. Ziska and F. M. Ziska. Judgment for defendants, and plaintiff brings error. Reversed.
November 4, 1903, Katherine Ziska, plaintiff below, and plaintiff in error here, secured a judgment for $1,700 in the district court of Lancaster county, Neb., against Frank R. Ziska, her husband, in a suit for divorce and alimony. On September 7, 1904, she instituted a suit on said judgment in the district court of Canadian county, Okl., suing out an attachment on a quarter section of land described as the N.W. 1/4 of section 17, township 12, range 6 W., of I. M., and on the trial of the cause on November 21, 1904, secured judgment against Frank R. Ziska in the, sum of $1,834, in which the attachment was sustained and the land ordered sold as required by law. On January 6, 1905, she filed this suit in the district court of Canadian county against Frank R. Ziska and F. M. Ziska. The amended petition alleges that in April, 1880, plaintiff and defendant Frank R. Ziska were married and lived and cohabited together until about the 1st day of November, 1901, at which time defendant abandoned her; that on the 27th day of July, 1903, she instituted an action for divorce and alimony, in which case on the 4th day of November, 1903, judgment was rendered for an absolute divorce and for $1,700 alimony; that the said judgment has become final; that on the 7th day of September, 1904, plaintiff instituted her action in the district court of Canadian county against Frank R. Ziska on the judgment above mentioned, and caused an attachment to be issued and levied on the land, and that on the 21st day of November, 1904, by the consideration of the said court, she secured a judgment against Frank R. Ziska in the sum of $1,834 and costs of suit, and an order that said attachment be sustained and the land sold as required by law to satisfy the said judgment; that on the 12th day of August, 1893, while plaintiff and defendant Frank R. Ziska were living together as husband and wife, they purchased the said land, which was paid out of the separate estate of this plaintiff, and the legal title to said lands taken in the name of the defendant Frank R. Ziska; that on November 30, 1901, and after the abandonment of the plaintiff by defendant, a deed was made by the said Frank R. Ziska to his brother, which purported to convey to the said brother, F. M. Ziska, the tract of land in question, and the said deed was recorded in the office of the register of deeds of Canadian county on the 12th day of December, 1901; that the said deed so made as aforesaid was made by the said Frank R. Ziska, without consideration, and with the intent that the said F. M. Ziska should hold said land in trust for the said Frank R. Ziska, and for his use and benefit, and with the intent and design, to hinder, defraud, and delay the plaintiff of her interest in said land in securing support and maintenance from defendant, and hinder, defraud, and delay plaintiff from collecting any judgment for alimony which might be awarded her thereafter; that said F. M. Ziska paid nothing for said land; that said F. M. Ziska has at all times been a resident of the state of Nebraska, and never took possession of said land or resided upon and cultivated the same nor claimed ownership thereof, and defendant Frank R. Ziska has at all times prior to the filing of this action claimed to be the owner of said land; "that the defendant Frank R. Ziska is insolvent, and has been at all times since the 1st day of December, 1901, and has no property subject to execution out of which plaintiff can make her judgment except the land heretofore described; that said deed from Frank R. Ziska to F. M. Ziska to said land is an obstruction to the process of this court, and hinders and delays plaintiff in the collection of her said judgment rendered in this court on the 21st day of November, 1904." Defendants' petition was followed by a prayer for a judgment canceling said deed and for costs of suit. To this the defendant F. M. Ziska filed a demurrer, setting out, among other things, that the petition showed on its face that it did not state facts sufficient to constitute a cause of action in favor of plaintiff and against the defendant. This demurrer was overruled, to which defendant reserved an exception. He thereafter filed an answer denying every material allegation in plaintiff's petition, admitting the suit in which plaintiff secured a judgment and attachment, which are the basis of this suit, but averring that the defendant F. M. Ziska was not a party to said suit, and that no summons was ever served on him, nor was he given any notice of the pendency of the said suit, and that none of his rights were litigated therein; that he was the owner in fee simple of the land above set forth, and has been ever since the 30th day of November, 1901, and that the levy of said attachment on said land was an apparent cloud upon the title. This answer was followed by a prayer asking the court to render judgment in his favor, declaring the title to said premises to be in him, free and clear of any incumbrances, lien, or cloud caused by said suit, judgment, or attachment. Frank R. Ziska made no defense or appearance in this case. On the trial to the court, a demurrer was sustained to the evidence to which plaintiff excepted, and the case before us on petition in error and case-made.
W. M. Wallace, for plaintiff in error.
Noffsinger & Hinch, for defendant in error F. M. Ziska.
Under the facts in this case as disclosed by the record and the briefs of the parties, two propositions are raised for the consideration of this court. Plaintiff appeals from a judgment of the district court sustaining a demurrer to the evidence, and holding it insufficient to support the allegations of the petition, and argues at length the elements of fraud which it is contended are disclosed by the conveyance of the land attached. Defendant in error joins issue in his brief on this subject, and, in addition thereto, contends that the petition shows on its face that the cause of action is barred by the statute of limitation by virtue of paragraph 4216, 2 Wilson's Rev. & Ann. St. 1903, which provides: "Civil actions other than for the recovery of real property, can only be brought within the following periods, after the cause of action shall have accrued, and not afterwards: *** Within two years *** an action for relief on the ground of fraud-the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud." And, second, that the petition of plaintiff is insufficient to sustain her cause of action, for that there is no allegation that an execution isued on the judgment procured in Canadian county or elsewhere, and a return nulla bona, prior to the beginning of this suit to set aside this alleged fraudulent conveyance. We will first discuss the legal propositions in the order here stated.
The deed which it is sought to have annulled was made on November 30, 1901. The suit in this case was begun on the 6th day of January, 1905, and it must be conceded, under the petition filed, that if the construction of the statute invoked by defendant is made applicable to this class and character of actions, then the cause of action is barred, for there is no allegation of a discovery which would take it out of its operation. As appears in the statement of facts, the basis of the claim which plaintiff makes against her husband to defeat the collection of which the deed is charged to have been made is the judgment secured by her in Nebraska in November, 1903. On this judgment, on the 7th of September, 1904, she filed her suit in the district court of Canadian county, and on the 21st of November following secured a judgment sustaining an attachment upon this tract of land, and the suit in this case was instituted in...
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