Mertens v. Welsing

52 N.W. 362, 85 Iowa 508

• Court: Supreme Court of Iowa
• Decided: May 23, 1892
• Status: Published

Opinion

Kinne, J.

The defendant, H. Welsing, was, during the year 1878, and for several years thereafter, treasurer of Lee county, Iowa.' The plaintiffs were sureties upon his official bond. Said Welsing became a defaulter to the county, and in 1884 it recovered a judgment on said bond against the plaintiffs and Welsing for five thousand, eight -hundred and thirty-seven dol-" lars and seventy-seven cents and costs, which judgment was afterwards affirmed by this court. The plaintiffs paid said judgment and costs, and the- same was assigned to them. The defendant, Welsing, has never paid any part of said judgment, and he is alleged to be insolvent. September 8, 1884, said Welsing and his wife conveyed certain land, then in his name, to the defendant, Louis Jacques (his brother-in-law), as is alleged, without consideration, and for the purpose of hindering and delaying the plaintiffs and other creditors of his, and that said Jacques knew of such purpose. The plaintiffs ask that the conveyance be set aside, and the land subjected to the payment of their judgment. The defendants filed a general denial. Three questions were presented: First. Was the conveyance made by Welsing to hinder and delay his .creditors? Second. Did the grantee, Jacques, have knowledge of such intent on the part of his grantors? Third. Was there any consideration for the deed?

I. The defendant H. Welsing does not appeal. It is insisted that the motion to exclude the depositions of witnesses G-raus, Warner, Bennett, Holder, and .Mertens, filed May 28, 1889, and which was submitted with the case to the district court, should have been sustained. It appears from the record that this motion was not ruled upon by the court. It was based upon the following grounds: First, that the evidence therein was not in rebuttal, but in chief; second, because the same was not filed on or before May 15, 1889, in accordance with the agreement of the parties. While we think there is some testimony in these depositions which is properly rebutting, yet, in the view we take of' the case, we disregard this testimony entirely, and hence need not - pass upon the questions presented in the motion.

II. We are fully satisfied that this sale was made -by Welsing with the intent and purpose of delaying and defrauding the plaintiffs, and that the grantee, Jacques, had knowledge of such intent. It is always proper to consider the situation and relation of the parties. Welsing and Jacques were brothers-in-law. Welsing and-wife often visited Jacques, during 1884. Welsing, in September, 1884, tried to borrow one thousand dollars’ of Jacques. Failing in this, he sold him the land at about twelve dollars per acre. Jacques had never seen the farm but twice, and that was long prior to its purchase. He thinks he was on it in 1884, before he bought it, but does not seem positive. He knew Welsing had trouble with Lee county. He wanted to see a lawyer to know if Welsing had a right to sell the farm on account of troubles in Lee county, and if he would be safe in buying. He told Root he did not have much interest in the land. This was after he had owned it for some time. True, he denies the conversation with Root. In 1887 Jacques said, in the presence of two parties, that he paid cash for the farm, hut did not care what became of it, so he got his money out of it. While there is a hopeless conflict in the evidence as to .the value of the land, yet it appears to us that the price agreed to be paid was greatly 'less than its value. Jacques does not satisfactorily show where he procured all the money he claims to have paid upon the land. He never occupied the land in person. Most of the rents continued to go to Welsing after the sale as before. Jacques claims he ordered the tenant to pay these rents to Welsing. But there is an appearance from the evidence about the transactions of these parties that forces one to the conclusion that the sale was a nominal change in title merely to help out Welsing. Welsing .continued to pay the taxes on the land, with the exception of two year's, just as he always had, and it is claimed he paid them for Jacques. In other words, the evidence shows that in nearly all respects Welsing was acting in relation to the land, and its products and cáre, as he always had prior to the sale. Jacques claims he did not know of his brother-in-law Welsing’s financial condition. In the light of all the evidence, and of the relations of these parties, we cannot accept his claim as true. Parties bought, crops which were..raised upon the farm, and they paid Welsing. We might cite many other facts disclosed by the testimony which warrant the conclusion we have reached. Even if it should be conceded that a sufficient consideration was paid, still, the purpose of the sale being to hinder and delay creditors, which was known to the grantee, it is invalid. Chapel v. Clapp, 29 Iowa, 191; Williamson v. Wachenheim, 58 Iowa, 277; Sweet v. Wright, 57 Iowa, 510. Counsel do not disagree as to the law applicable to this case, nor could they well do so, for it is well settled, and need not be reviewed. The questions are of fact, and, after a full consideration of all the competent evidence, we think the decree of the court below was right, and it will be AEEIRMED.