Zuniga v. Evans

• Decision Date: 13 August 1935
• Docket Number: 5459
• Citation: 87 Utah 198,48 P.2d 513
• Court: Utah Supreme Court
• Parties: ZUNIGA v. EVANS et al

48 P.2d 513

87 Utah 198

ZUNIGA v. EVANS et al

No. 5459

Supreme Court of Utah

August 13, 1935

Rehearing denied November 23, 1935.

Appeal from District Court, Third District, Salt Lake County; David W. Moffat, Judge.

Suit by Eleanor Zuniga against Ernest I. Evans and others. Judgment for plaintiff, and defendants appeal.

AFFIRMED.

C. E Norton, L. J. Bradford, and E. D. Hatch, all of Salt Lake City, for appellants.

Homer Holmgren and R. O. Pearce, both of Salt Lake City, for respondent.

WOOLLEY, District Judge. ELIAS HANSEN, C. J., EPHRAIM HANSON, J., and E. E. PRATT, District Judge, FOLLAND, Justice, concurring. MOFFAT and WOLFE, JJ., being disqualified, did not participate.

OPINION

WOOLLEY, District Judge.

This is a suit to set aside a conveyance of real property made by the defendant Ernest I. Evans, as grantor, to the defendants Eloise Evans (now Tanner) and Margaret Evans Snarr, his daughters, as grantees, and to subject the property to sale upon a judgment which plaintiff had obtained in another action against Ernest I. Evans. The plaintiff alleges that the conveyance was made without consideration and to hinder, delay, and defraud the creditors of the grantor and particularly the plaintiff. The defendants filed separate answers, in which they deny plaintiff's allegations of want of consideration and of fraud and affirmatively allege that the grantees paid a full, fair, and adequate consideration for the property. Defendant Ernest I. Evans, by an amendment to his answer, also affirmatively alleges that at the time of the conveyance the property was his homestead, and therefore he claims it is not subject in any event to sale upon plaintiff's judgment.

The case was tried twice, the first trial resulting in a judgment of nonsuit and dismissal of the action. A motion for a new trial was made by the plaintiff and granted by the court. The second trial resulted in a judgment in favor of the plaintiff according to the prayer of the complaint and the defendants appeal. Based upon sixty-five assignments of error, which are deemed sufficient for the purpose, the appellants argue: (1) That the court erred in granting a new trial; (2) that the complaint does not state facts sufficient to constitute a cause of action; (3) that the evidence shows that the grantees in the deed paid a full fair, and adequate consideration for property, and hence that the findings to the contrary and the conclusions of law and judgment based thereon are erroneous; and (4) that the property conveyed was exempt to Ernest I. Evans under the homestead laws of this state, and therefore beyond reach of his creditors, so that in any event respondent has no right to complain. These points will be disposed of in the order in which they are stated.

1. The motion for a new trial was based upon the grounds: (a) Insufficiency of the evidence to support or justify the judgment of nonsuit and dismissal; (b) that the judgment is against law; and (c) errors in law occurring at the trial and excepted to by the plaintiff. The case was dismissed at the close of plaintiff's case in chief because the trial court was of the opinion she had not made out a prima facie case; and the motion for a new trial was granted, it seems, because the trial judge upon further consideration decided he had been in error in dismissing the complaint. When the plaintiff rested her case, there was evidence before the court from which it might well have been inferred that Evans was insolvent when he executed the conveyance to his daughters, or that he was thereby rendered insolvent; the deed had been put in evidence in which a consideration of $ 10 and other good and valuable consideration is recited, but there was no evidence to show anything else about the consideration, while there was evidence to show that the property was of a fair value of $ 3,250; it was alleged in the complaint and admitted by the answer of defendant Ernest I. Evans that the conveyance was made after the date of the accident and but a few days before the trial of the action for damages; and it was alleged in the complaint and admitted by all the answers that the grantees were daughters of the grantor. If the complaint states a cause of action, which we assume for the present it does, then it was necessary for defendants to go forward with their proof to show, as they alleged, that the daughters paid their father a fair consideration for the property, or suffer judgment to go in favor of the plaintiff. See Paxton v. Paxton, 80 Utah 540, 15 P.2d 1051. The recited consideration of $ 10 is not a fair consideration, and the expression "other good and valuable considerations" means nothing until explained by extrinsic evidence. So we conclude the court was wrong in granting the motion for a nonsuit and in dismissing the complaint, and right in granting the motion for a new trial.

2. As to the complaint: The suit is brought under the Uniform Fraudulent Conveyances Act, chapter 42, Laws Utah 1925. In the first six paragraphs of her complaint, plaintiff alleges: That on November 26, 1930, judgment was rendered in her favor and against defendant Ernest I. Evans in the district court of Salt Lake county, Utah, for $ 3,225 damages and $ 38.20 costs, in an action to recover damages for personal injuries sustained by plaintiff through the negligence of said defendant in an automobile accident which occurred on December 31, 1929; that execution had been issued on said judgment and returned wholly unsatisfied; that after plaintiff had commenced her said action for damages, Evans conveyed his property, which is described, to the other two defendants in this suit; that the other two defendants are daughters of Ernest I. Evans; that Ernest I. Evans conveyed said property to his daughters without any consideration and for the purpose of hindering, delaying, and defrauding his creditors, and particularly for the purpose of hindering, delaying, and defrauding plaintiff in the collection of any judgment which she might obtain and which she did obtain in said action for damages; and that said Ernest I. Evans has at all times since said conveyance remained in possession and control of said properties. Paragraph 7 of the complaint, as amended during the first trial, reads:

"That plaintiff is informed and believes, and therefore alleges upon information and belief, the said defendant Ernest I. Evans was, prior to and at the time of transferring said properties above mentioned, and became, by reason of such transfer, and still is insolvent and at the time of said transfer and thereafter and by reason of said transfer said defendant's assets and the fair salable value of his assets were and now are less than the amount required to pay his then and now existing and probable liabilities and debts as they became and should become absolute and matured, and said defendant had, by reason of said transfer, and now has, no properties of any kind other than the real properties above described out of which plaintiff's said judgment and execution could be satisfied in whole or in part, and that unless said real properties be applied to the payment of said judgment the same must remain wholly unpaid. That plaintiff is without adequate or any remedy at law and unless the equitable interposition of this court is had, the plaintiff will be without remedy and will suffer the loss of her said judgment."

The appellants find a great deal of fault with this complaint. They say it is lacking in several essential allegations and therefore does not state facts sufficient to constitute a cause of action. They say it is insufficient because the plaintiff is not a creditor and her claim is not a debt within the meaning of the act, her claim being in tort and not reduced to judgment when the conveyance was made. We perceive no merit in this criticism. Section 1 of the act defines a "creditor" as a person having any claim whether matured or unmatured, liquidated, absolute, fixed, or contingent; and says that the word "debt" includes any legal liability, whether matured or unmatured, liquidated, absolute, fixed or contingent. These definitions are comprehensive enough to include plaintiff and her claim. Additional authority, however, may be found in Babirecki v. Virgil, 97 N.J. Eq. 315, 127 A. 594, 39 A. L. R. 171, and note to that case; and American Surety Co. of New York v. Conner, 251 N.Y. 1, 166 N.E. 783, 65 A. L. R. 244, in which the opinion is written by Mr. Justice Cardozo. The complaint is criticized because it does not allege that the property conveyed was not a homestead or otherwise exempt. This is said to be a necessary allegation because section 1, in defining "assets" to mean property not exempt from liability for debts, sets up an exception as distinguished from a proviso, which must be negatived by the pleader. This objection is not well taken because section I neither sets up an exception nor contains a proviso, but only defines the word. See 49 C. J. 153 and note to section 169, for definitions of the terms "exception" and "proviso." Furthermore, whether this property was a homestead and so exempt from execution is a matter of defense to be pleaded and proved by the defendants (see Giesy-Walker Co. v. Briggs, 49 Utah 205, 162 P. 876); and therefore the contrary need not to be alleged in the complaint. They also argue that the complaint does not allege any fraudulent acts on the part of defendants, nor any facts from which fraud may be inferred, nor that the grantees in the deed had any knowledge of or participated in any fraud. This criticism cannot be sustained. Where no consideration was given by the grantees, and this complaint alleges there was none, it is not necessary to allege or prove the grantees' participation in the fraud or...