Beck, J.
The decision of this case turns chiefly upon the facts. We will not attempt a discussion of the evidence, bxit aim to state briefly our conclusions thereon.
I. We find from the evidence that the lands in controversy, excepting those pm’chased of Lyon, were purchased by Charles F. Harrow with his own means, and that he caused the title thereof to be conveyed to Francis Iff., with the fraudulent intent of hindering the collection of debts which he owed. There exists some doubt whether 'the Lyon land was purchased by Francis Iff. with his own money, yet the preponderance of the evidence is to that effect. The decision of the case, so far as this land is concerned, it will be found, turns upon another question.
II. The instrument executed by Francis M., in 1848, was a declaration of trust, and not a conveyance,' nor did [464]*464it operate as such, having neithef words of conveyance nor being so intended. Upon this point there is great conflict of evidence, and it is not free from doubt. But the preponderance of testimony is decidedly in support of our conclusion. All the witnesses wTho give evidence of its contents describe it as a declaration of trust simply.
Their evidence as to its contents gives it that character, except the attorney who drew the instrument. lie states that it contained words of conveyance, and that it, in his opinion, operated as a conveyance. His deposition was twice taken. In his last deposition, taken in 1866, he gives it the character of a conveyance; in his first deposition, taken in 1859, he states the contents of the instrument to be a declaration of trust and an agreement to convey the lands in. accordance with the request or any will or devise of Charles F. Harrow. The evidence, in our opinion, clearly establishes that the instrument was a simple declaration of trust.
III. This declaration of trust did not embrace all of the land in controversy; about 200 acres purchased of Lyon and denominated in the arguments of counsel the “Lyon land ” 'were not intended1 to be covered by it.
Upon this point, too, therejte great doubt and considerable conflict of evidence, but more uncertainty and vagueness probably than conflict. It seems that the determination of this point turns upon one question: Was the Lyon land purchased before the execution of the declaration of trust ? If not, it is not claimed that it was included in that instrument. It appears that upon this question there ought not to be such uncertainty iii the evidence. There certainly is in existence, evidence upon this point that is positive and direct; but the parties have not produced it.
In our opinion the preponderance of evidence estab- - lishes'tke fact to be, that the land was bought after the [465]*465execution of the declaration of trust and was not included therein. Some of the reasons for this conclusion are the following: The attorney who drew the instrument and seems to have been well acquainted with the property and affairs of the parties, does not mention this land, although he enumerates other land included in the declaration of trust, and especially names the persons of whom Harrow purchased them. The deeds for the land were executed — one in 1849, the other in 1850 — after the date of the execution of the declaration of trust, which was in 1848. This fact, of no great weight upon the question, will, at least, throw the burden upon the plaintiff, of proving the date of the purchase. Without other evidence, the deeds will establish the date of purchase to have been upon the day of their execution. There are other circumstances and facts in the record which, with considerable force, sustain our conclusion.
It is conceded, in argument by plaintiffs’ counsel, that if the Lyon land was not included in, or covered by, the declaration of trust, recovery in this suit cannot be had as to that land. Here, so far as that land is concerned, the case ends; but there being other property involved, it becomes necessary to discuss other questions which affect equally all the property involved in the suit.
IY. It is a well settled doctrine, that a deed executed to defraud creditors, is valid between the parties and their heirs, and that a court of equity will not require the grantee or his heirs to reconvey by way of enforcing a trust between the parties. Holliday v. Holliday, 10 Iowa, 200 ; see also the numerous authorities cited by Mr. Stiles, one of defendants’ counsel. The rule is not changed if the trust be embraced in writing. See Murphy v. Herbert, 16 Penn. St. 50, and authorities cited by Mr. Stiles.
The question arises, was the declaration of trust a part of the original fraudulent scheme to defeat the creditors [466]*466of Charles F. Harrow, or did it originate in honest motives ?
We are unable to discover from, tbe evidence, any change of purpose on the part of Charles F. or Francis 1VL Harrow, in the act of taking and executing the declaration of trust. At that time Charles F. was still indebted, and the very reason the instrument was executed was to enable him, in greater safety, to continue to thwart and defeat his creditors. The execution of the trust was prompted by no honest purpose on the part of himself and son. Had that been the motive, the property would have been honestly uncovered by removing the fraudulent barriers thrown around it for its protection against creditors. Honest intentions would have prompted an open conveyance of the property. The sole motive for the execution of the declaration of trust, was to enable Charles F. Harrow to defraud his creditors, and retain the enjoyment of his property, and secure it to his heirs. It was a part and continuation of the scheme of fraud which began in purchasing property with his own means in the name of his son. A desire to protect himself from anticipated .dangers, growing out of the death or want of faithfulness of his son, was the motive on his part, participated in by the son, which led to the fraudulent device of the declaration of trust. A court of equity will not enforce it. The decree of the District Court, dismissing the bill of complainant, is
Affirmed.
Coke, - J*., dissenting.
[467]*467DECEMBER TERM, 1868. 467 The State v. Newberry. The State v. Newberry. 1. Criminal law: indictment fob assault with intent to commit an offense. In an indictment for an assault with intent to commit an offense, it is not necessary to make all the averments required, in an indictment for the offense itself. 2.- It was accordingly held, that in an indictment for an assault with intent to commit murder, it was not necessary to aver that the assault was made with malice aforethought. Appeal from, Guthrie District Court. ■ Friday, January 29. The defendant was indicted, tried and convicted of the crime of an assault with intent to murder; and he appeals. Phillips, Gatch <& Phillips for the appellant. H. O’Connor, Attorney-G-eneral, for the State. Cole, J. — The indictment charges that the defendant “ willfully, feloniously and unlawfully did make an ascrihotallaw: sault, etc., with intent him, etc., then and iSuothere to kill and murder, contrary, etc.” The commit. oniy point made is, that the indictment is bad, for that it does not charge that the assault was made “ with malice aforethought.” That it is necessary, in an indictment for murder under our statute, to charge that the homicide was done with malice aforethought, cannot now be questioned. Rev. §§ 4191-3; The State
Free access — add to your briefcase to read the full text and ask questions with AI
Beck, J.
The decision of this case turns chiefly upon the facts. We will not attempt a discussion of the evidence, bxit aim to state briefly our conclusions thereon.
I. We find from the evidence that the lands in controversy, excepting those pm’chased of Lyon, were purchased by Charles F. Harrow with his own means, and that he caused the title thereof to be conveyed to Francis Iff., with the fraudulent intent of hindering the collection of debts which he owed. There exists some doubt whether 'the Lyon land was purchased by Francis Iff. with his own money, yet the preponderance of the evidence is to that effect. The decision of the case, so far as this land is concerned, it will be found, turns upon another question.
II. The instrument executed by Francis M., in 1848, was a declaration of trust, and not a conveyance,' nor did [464]*464it operate as such, having neithef words of conveyance nor being so intended. Upon this point there is great conflict of evidence, and it is not free from doubt. But the preponderance of testimony is decidedly in support of our conclusion. All the witnesses wTho give evidence of its contents describe it as a declaration of trust simply.
Their evidence as to its contents gives it that character, except the attorney who drew the instrument. lie states that it contained words of conveyance, and that it, in his opinion, operated as a conveyance. His deposition was twice taken. In his last deposition, taken in 1866, he gives it the character of a conveyance; in his first deposition, taken in 1859, he states the contents of the instrument to be a declaration of trust and an agreement to convey the lands in. accordance with the request or any will or devise of Charles F. Harrow. The evidence, in our opinion, clearly establishes that the instrument was a simple declaration of trust.
III. This declaration of trust did not embrace all of the land in controversy; about 200 acres purchased of Lyon and denominated in the arguments of counsel the “Lyon land ” 'were not intended1 to be covered by it.
Upon this point, too, therejte great doubt and considerable conflict of evidence, but more uncertainty and vagueness probably than conflict. It seems that the determination of this point turns upon one question: Was the Lyon land purchased before the execution of the declaration of trust ? If not, it is not claimed that it was included in that instrument. It appears that upon this question there ought not to be such uncertainty iii the evidence. There certainly is in existence, evidence upon this point that is positive and direct; but the parties have not produced it.
In our opinion the preponderance of evidence estab- - lishes'tke fact to be, that the land was bought after the [465]*465execution of the declaration of trust and was not included therein. Some of the reasons for this conclusion are the following: The attorney who drew the instrument and seems to have been well acquainted with the property and affairs of the parties, does not mention this land, although he enumerates other land included in the declaration of trust, and especially names the persons of whom Harrow purchased them. The deeds for the land were executed — one in 1849, the other in 1850 — after the date of the execution of the declaration of trust, which was in 1848. This fact, of no great weight upon the question, will, at least, throw the burden upon the plaintiff, of proving the date of the purchase. Without other evidence, the deeds will establish the date of purchase to have been upon the day of their execution. There are other circumstances and facts in the record which, with considerable force, sustain our conclusion.
It is conceded, in argument by plaintiffs’ counsel, that if the Lyon land was not included in, or covered by, the declaration of trust, recovery in this suit cannot be had as to that land. Here, so far as that land is concerned, the case ends; but there being other property involved, it becomes necessary to discuss other questions which affect equally all the property involved in the suit.
IY. It is a well settled doctrine, that a deed executed to defraud creditors, is valid between the parties and their heirs, and that a court of equity will not require the grantee or his heirs to reconvey by way of enforcing a trust between the parties. Holliday v. Holliday, 10 Iowa, 200 ; see also the numerous authorities cited by Mr. Stiles, one of defendants’ counsel. The rule is not changed if the trust be embraced in writing. See Murphy v. Herbert, 16 Penn. St. 50, and authorities cited by Mr. Stiles.
The question arises, was the declaration of trust a part of the original fraudulent scheme to defeat the creditors [466]*466of Charles F. Harrow, or did it originate in honest motives ?
We are unable to discover from, tbe evidence, any change of purpose on the part of Charles F. or Francis 1VL Harrow, in the act of taking and executing the declaration of trust. At that time Charles F. was still indebted, and the very reason the instrument was executed was to enable him, in greater safety, to continue to thwart and defeat his creditors. The execution of the trust was prompted by no honest purpose on the part of himself and son. Had that been the motive, the property would have been honestly uncovered by removing the fraudulent barriers thrown around it for its protection against creditors. Honest intentions would have prompted an open conveyance of the property. The sole motive for the execution of the declaration of trust, was to enable Charles F. Harrow to defraud his creditors, and retain the enjoyment of his property, and secure it to his heirs. It was a part and continuation of the scheme of fraud which began in purchasing property with his own means in the name of his son. A desire to protect himself from anticipated .dangers, growing out of the death or want of faithfulness of his son, was the motive on his part, participated in by the son, which led to the fraudulent device of the declaration of trust. A court of equity will not enforce it. The decree of the District Court, dismissing the bill of complainant, is
Affirmed.
Coke, - J*., dissenting.
[467]*467DECEMBER TERM, 1868. 467 The State v. Newberry. The State v. Newberry. 1. Criminal law: indictment fob assault with intent to commit an offense. In an indictment for an assault with intent to commit an offense, it is not necessary to make all the averments required, in an indictment for the offense itself. 2.- It was accordingly held, that in an indictment for an assault with intent to commit murder, it was not necessary to aver that the assault was made with malice aforethought. Appeal from, Guthrie District Court. ■ Friday, January 29. The defendant was indicted, tried and convicted of the crime of an assault with intent to murder; and he appeals. Phillips, Gatch <& Phillips for the appellant. H. O’Connor, Attorney-G-eneral, for the State. Cole, J. — The indictment charges that the defendant “ willfully, feloniously and unlawfully did make an ascrihotallaw: sault, etc., with intent him, etc., then and iSuothere to kill and murder, contrary, etc.” The commit. oniy point made is, that the indictment is bad, for that it does not charge that the assault was made “ with malice aforethought.” That it is necessary, in an indictment for murder under our statute, to charge that the homicide was done with malice aforethought, cannot now be questioned. Rev. §§ 4191-3; The State v. JSTeeley, 20 Iowa, 110. But in an indictment for an assault with intent to commit an offense, it is not necessary to make all the averments required in an indictment for the offense itself. Commonwealth v. Rogers, 5 Serg. & R. 463 ; Commonwealth v. McDonald, 5
[468]*468Cush. 365. The statute under which this indictment was found is as follows: [Revision, “ Sec. 4214 (2591). If any person assault another with intent to commit murder, he shall be punished by imprisonment in the penitentiary not exceeding ten years.” It is the intent with which the assault is made, which constitutes the offense, rather than the intent which enters into and forms an ingredient of the offense intended. Of course, in making proof of the crime of an assault with intent to commit a particular offense, it is incumbent upon the State to show such facts as will manifest the intent to commit the offense charged; if that can only be shown by proving a particular intent or act, as an essential ingredient of such offense, that intent or act must be proved;’ it is sufficiently charged, however,- where the indictment charges the assault with an intent to commit the offense of which that intent or act forms an essential ingredient. In other words, so far as intent is concerned, an indictment for an assault with intent to commit an offense, which is sufficient for any one of the offenses thus indictable, is sufficient for any other. The ingredients of the offense intended to be committed, whether of intent or act, are not necessary to be charged in an indictment for an assault with intent to commit it. And this, for the reason that these aggravated assaults are offenses entirely outside and independent of the offense intended to be committed. They are as the vestibule to the hall of crime. They have their own surroundings, which characterize that class of crimes, and are necessary to be stated in the indictment for any of them; while the offense intended is only to b<d pointed at, riot defined.