Stewart v. Rogers

25 Iowa 395

• Court: Supreme Court of Iowa
• Decided: July 23, 1868
• Status: Published

Opinion

Dillon, Ch. J.

Voluntaby to child: on ' \vhat validity depends. It is proposed briefly to state our views of the ease without entering at large into an examination of the testimony. The case naturally divides itself into two parts, viz., the convey-A ’ , ' *1 anees of the 800 acres of land in April, 1860, and the conveyances of the 360 acres in March, 1861.

The conveyances of April, 1860, of the 800 acres by John A. Eogers to his four children, were confessedly voluntary. This, Mr. Eogers and the children all admit; though it is in testimony that these conveyances were made by the father (whose daughters were married and his sons nearly of age) in pursuance of a previous purpose on his part to make such a division of his estate among his children.

In the absence of an existing actual intent to defraud, whether a voluntary conveyance to a child will be void as to the creditors of the father will depend upon its reasonableness, and the condition of the grantor as respects his ability to pay his debts out of the property retained by him. The authorities are not uniform, but such has been the view of this subject heretofore taken in this court. See Carson v. Foley, 1 Iowa, 524; Lyman v. Cessford, 15 id. 229; Hook v. Mowre, 17 id. 195; Culbertson v. Lucky, 13 id. 12; Sexton v. Wheaton, 1 Am. Lead. Cases, 68, 72, and cases cited.

Eecognizing the rule above stated, as it is illustrated in its application in the authorities cited and referred to, it is our opinion, — in view of the large amount of property conveyed to the children, the large indebtedness of the donor at the time, the comparatively small amount of real property not embraced in this disposition, the short period of time which elapsed after the conveyence in question, and the confessed insolvency of the voluntary grantor, — that the conveyances made in April, 1860, cannot be sustained as against the plaintiff.

If made without any meditated fraud, and in pursuance of a previous purpose on his part to make such a division of his estate among his children, still these conveyances would operate, if sustained, to effect a fraud upon his creditors existing at the time.

Respecting the conveyances of the 360 acres in March, 1861, it is our opinion that these cannot be sustained as against the plaintiff, Stewart.

At this time suits were pending, or about to be brought, against Rogers. He was fearful that the mortgaged property might possibly not pay his debts.

He does not claim that he conveyed this last 360 acres to his children to make a provision for them, for he had done that before; but he claims that he made a sale of this land to them, and that they paid him for it. We have examined the whole evidence very carefully, and are satisfied that these were not bona fide sales and conveyances. The price alleged to have been paid was very inadequate, and the evidence of payment by no means satisfactory.

The decree dismissing the plaintiff’s petition is reversed and the cause remanded, with directions to the court to charge and apportion the amount due Stewart, upon the lands conveyed by Rogers in April, 1860, and on the 4th of March, 1861; and if not paid by such time as the court shall fix, to order them to be subjected to the plaintiff’s judgment. The District Court will except from the lands so to be charged any which were bona fide conveyed by any of the defendants prior to the institution of this suit.

Reversed.