Glenn v. Glenn

17 Iowa 498

• Court: Supreme Court of Iowa
• Decided: December 10, 1864
• Status: Published

Opinion

DilloN, J.

i. deposi-notice.’ I. On behalf of Davis and Berger, notice to take depositions was duly served by the sheriff upon the attorneys of record (Negus & Culbertson) of Charles T. Glenn and Edward J. Smith, who afterward moved to suppress the depositions, because no notice had been served upon the other Glenns, parties to the proceeding.

The answer to the objection is obvious. The notice having been properly served upon the attorneys of record of the parties who moved to suppress it, they could not object to the deposition because some one else had not been notified.

g Rbaud-ofnreaíaü0e estate. II. Davis and Berger are admitted to be bona fide creditors of John M. Glenn, and the principal question in the case ^s> whether conveyances before named were or were not fraudulent as to creditors. There |g nQ ¿¡jSpute as to the rules of law which apply. The contest is as to the facts; and these depend upon the testimony. If tbe conveyances from tbe father to Ms sons, and from tbe latter tó tbe plaintiffs, were made and received for tbe purpose of defrauding or delaying creditors, they are, as to tbem, void.

Were they so made and received? From tbe pleadings and evidence tbe following facts, most of tbem being badges or signs of fraud, are satisfactorily shown:

1. That John M., tbe father, was in greatly embarrassed circumstances, and was unable to pay bis debts. He had been, or was about to be, pressed by bis creditors. These facts are' admitted in his answer, and be there further admits “ that be was compelled to sell bis property at private sale, or have it sacrificed at forced sale.” There were, then, in the very nature and circumstances of bis situation, strong motives to make a sham or fraudulent transfer of his estate. That these motives prevailed, and that tbe transfer was of this kind, further,appears —

2. By the time when it was made. It was made on the same day that Davis and Berger brought their suits. If it was not, as in Twyne's case, made 'pending suit, it was made in anticipation of actions being brought. There is no evidence to show that Davis and Berger had knowledge of the conveyance to the sons when they brought suit, or that they brought these actions in consequence of any information of this character. There is evidence tending to show that tbe conveyance in question was made after the service of notice. This point, in view of tbe evidence, is not controllingly material, and need not detain us.

8. The nature and purposes of the transfer are also evidenced by tbe amount of property conveyed. It comprised all of his estate, or substantially all, both real and personal. Tbe design of the parties is further shown —

4. By the relationship between them, and the pecuniary circumstances and legal irresponsibility of the purchasers. They were his sons. Tbe professed consideration for the purchase of tbe land was $5,040; for tbe personal property, $856. This was a large amount of property. It was sold wholly on credit. No money, or, at most, only a small and colorable amount, passed. One of the sons was a minor, and, therefore, legally irresponsible, and both are shown to be persons almost wholly without means or property, worth $100 or so, according to the testimony of the witnesses. Notwithstanding this, no security, by way of mortgage or otherwise,, was taken — simply the notes of the sons, running from one to five years. These are not the signs and credentials of a real sale, but, rather, the badges and distinctions of an unreal or fraudulent one. The plaintiffs (Smith and Charles T. Glenn), likewise relatives, and grantees subsequently, of part of the property, were also men of no means. In 1860, Smith, who professed to give $2,000 for his land, was assessed with no realty, and with only $62 of personalty, and Charles with only $218 of personal estate, and land to the amount of $541, which was the year before assessed to his father. In addition to these circumstances, the plaintiffs are further connected with the fraud by the circumstances testified to by Miller. Miller was a creditor, and, it seems, a former partner, of John M. Glenn. He wished payment. The father directed him to go to his son Charles. He went, and obtained in payment of his debt against the father, “ a note on Smith (one of the plaintiffs) to the amount of six hundred dolía,rs.” He also obtained, to secure it, “ a mortgage on a piece of land (part of the Glenn farm) of Smith.” It is a significant circumstance that these papers were all ready and delivered to Miller in tbe absence of Smith. No explanation is given why Smith and his property should thus be controlled by and for the benefit of the father. The reasonable inference is, that it 'was held in secret trust for him. “Fraud,” it is said, in Twyne's case, “ is always apparelled and clad with a trust.”

5. Another consideration of much weight is, that notwithstanding the circumstances thus attending the transfers in question seem to require explanation, if any could be given, yet neither the father nor any of the sons or the son-in-law have become witnesses. If they could truthfully have testified to facts showing the bona fides of the conveyances in question, the reasonable presumption is that,, being competent witnesses, they would have done so. Where the circumstances are so suspicious as those above specified, the failure by the plaintiff to offer explanatory or rebutting evidence, thus clearly within their power had it existed, makes strongly against them. Blatch v. Archer, Cowp., 65, per Lord Mansfield.

Perhaps no one of the badges or signs of fraud above mentioned would singly have been sufficientbut their united effect, unexplained, is to satisfy us that the sale by the father was a mock transfer, or, at least, one made to delay creditors, and that the land is held by the plaintiffs and the other sons subject to the just claims of Davis and Berger.

Affirmed.