Delashmut v. Trau

44 Iowa 613

• Court: Supreme Court of Iowa
• Decided: October 24, 1876
• Status: Published

Opinions

Day, J.

There is no conflict in the evidence that when the debt was contracted, the judgment rendered, and the conveyance executed to William Trau, the property in question was the homestead of Matilda Trau, and was occupied by her as such.

The deed of Matilda Trau to William bears date July 25, 1872, is for the expressed consideration of $500.00, and is subject to a mortgage of $700.00.

On the 18th day -of March, 1873, the plaintiff caused execution to issue, which was levied on the property in controversy. It seems from the evidence that Matilda remained in the property until May or June, 1873, when she removed to Chicago. It is not disputed that, at the time this suit was commenced, she was - a non-resident of the State. The plaintiff does not, as we understand, controvert the right of Matilda Tran to make a voluntary conveyance of her homestead. Plaintiff in his argument states that he rests his case upon one question of fact, and that is, that Matilda Trau is a non-resident of the State, and is in fact the owner of the property in controversy, although nominally the title is in the name, of her son William. And it is claimed that the decree below was upon this ground. The argument of plaintiff employs the following language: “If Matilda Trau is’a non-resident of Iowa, and owns real estate in Des Moines county, and plaintiff owns a judgment of record in that county, does it affect the lien of that judgment to say that the property was once her homstead, and while it was such she had the legal right to convey it? If she did not convey it, why trouble our minds with the legal.question of her right to do so?” If she did not in fact convey the property, it is quite clear there is an end of the controversy. The real and material question for our inquiry is, what did she do respecting the property? The answer is, as deduced, from the evidence in the case, she' executed a deed of conveyance of it to her son William, on the 25th day of July, 1873. What was the effect of this conveyance? Plaintiff claims that, notwithstanding this deed, the property in controversy continued as before to belong to Matilda Trau. He rests his right to relief upon the existence of that fact. Let us examine this position. The. conveyance from Mrs. Trau toiler son William possessed one of two characters: it was either in good faith or it was fraudulent. If it was in good faith, it passed the title absolutely to the son, and no one has any ground of complaint; if it was fraudulent, Mrs. Trau cannot set it aside. As between her and her son, it vests the title in the son just as absolutely as though it had been made in good faith. It is said that the son, after the conveyance to him, recognized his mother’s ownership and -paid-her rent. Suppose he did? This act was purely voluntary on his part. The mother was not in a condition to compel such payment of rent. Whenever the son sees fit to cease such payment, there is no legal means whereby the mother can compel him to continue it. If, then, the legal title has passed from Mrs. Trau in such manner that she has no legal means of re-investing herself with it, how can it be said that she is still the owner in fact of the property? Is not that an anomalous ownership which confers no rights which the law will protect or enforce?

Suppose the conveyance was intended to keep the property beyond the reach of plaintiff. What legal ground of com-' plaint has he? He could not reach the property for the satisfaction of his debt before the conveyance, and he was in no worse condition after it. • His basis for relief must be that the conveyance was fraudulent as to him. But how is he to make this fraud to appear? The most and all that he can claim is that the conveyance was voluntary, and made for the purpose of hindering him in the collection of his debt. But the conveyance does not create any exemption of property; it merely perpetuates one which existed before.

In order to make a voluntary conveyance void as against creditors, it is indispensable that it should convey property •which would be liable to be taken in execution for the payment of debts. Dearman v. Dearman & Coffman, 4 Ala., 521; Planters’ Bank v. Henderson, 4 Humph., 75; Kerr on Fraud and Mistake, 209, and cases cited; Wolf v. Van Metre, 23 Iowa, 397.

The case, we think, resolves itself into the following propositions, which exist beyond question: That the title to the property has passed from Matilda Trau beyond her power of recall, and that the plaintiff, because of such alienation, is in no worse condition than he was before.

In our opinion the-court erred in setting the conveyance aside upon plaintiff’s application.

Eeveesed.