Pratt v. Green , 25 Iowa 39 ( 1868 )

Dillon, Ch. J.

rea-oduumt rrauOttime conveyed tms“°tIltr' The deeds to Green are absolute on their face, and disclose no trust nor any intention to create one. The question which counsel have argued is, whether the trust alleged is an express one, and must be created or evidenced by writing. Eev. § 22IS; Ratliff v. Ellis, 2 Iowa, 59; 2 Leading Cases in Equity, 704, et seq.

This question was perhaps legitimately presented by the original petition, which was also demurred to on the same grounds as the amended petition, the substance of which is set out in the statement. The demurrer to the original petition was sustained by the court, “ whereupon leave was granted plaintiff to amend his petition ” within a designated period. To this ruling the plaintiff did not except, but amended his petition pursuant to the leave given him by the court. There is no question which we can review presented by the decision of the District Court on the demurrer to the original petition.

The amended petition was, as shown by the statement, also demurred to, and the demurrer was sustained and the plaintiff excepted and appeals. The substance of this amended petition is fully given in the statement, and, by an examination thereof, it will be seen that the question argued by counsel does not arise thereon. It presents the ordinary case of a conveyance by an alleged fraudulent grantor to a fraudulent grantee, without consideration, and made and received with the intent to defraud creditors.

If the facts therein alleged are true, the conveyance by Delevan to Green was a fraud upon the creditors of the former. Jones & Shephard, who were creditors, could have subjected the lands in Green’s hands to the payment of their judgment against Delevan.

Plaintiff, in virtue of his relationship of surety, upon payment by him of Jones & Shephard’s debt against Delevan, would become subrogated to all their rights and remedies, unless he had done some act to deprive himself of this right.

The amended petition claims in hostility to the deed from Delevan to the defendant; and the fact that the deed is absolute on its face will not of course defeat the right of a creditor to show it to be fraudulent. If plaintiff were not attacking it for fraud,’ but were claiming 'under it, and if, without any allegation of fraud on the part of defendant in procuring it, he were seeking to prove by parol evidence that the conveyance to Green, though absolute, was in fact in trust to pay the debts of Delevan, a different and more difficult question would be presented, and in relation to which we are not required by the present record to express any opinion.

If the lands conveyed to Green would be liable to the payment of the Jones & Shephard judgment, because the conveyance to him was fraudulent, no reason is seen, nor has any been suggested by counsel, why the proceeds of such lands would not stand affected with an equal liability.

In our opinion, the facts stated in the amended petition gave the plaintiff a cause of action ; wherefore the court erred in sustaining a demurrer thereto.

Its judgment is reversed, and the cause remanded, with leave to the defendant to answer, if he is so advised..

Reversed.