Picket v. Garrison , 76 Iowa 347 ( 1888 )

Robinson, J.

— For some time prior to the thirtieth day of January, 1888, one F. Hosford was the owner of the property in controversy, which consists of horses, buggies and other articles comprising a livery stock kept in the town of Missouri Valley. Appellant claims that prior to the twenty-first day of that month he had negotiated for the purchase of this stock, and that on the day named he agreed to take it at the price of twenty-two hundred dollars, and paid thereon the sum of five dollars ; that on the thirtieth day of January the purchase was concluded, the remainder of the price paid, and possession taken. .It appears that on the last-named date the wife of Hosford commenced an action for divorce, in which she asked and was given a writ of attachment against the property of her husband. This was served a few hours after plaintiff claims to have perfected his purchase, by levying upon and taking the property alleged to have been purchased as aforesaid. This action was brought to recover that property.

1 divorce : foSmony: fraudulent conveyance. I. Appellant insists that the claim of the wife for alimony was not in the nature of a debt; that she was not a creditor, of her husband ; and that the purchase by plaintiff of the property in controversy gave him a good title thereto, eyen though ■ when he made it he was

chargeable with notice of the fact that the husband was transferring the property for the purpose of placing it beyond the reach of his wife. The case of Daniels v. Lindley, 44 Iowa, 567, is relied upon as supporting this position. That case decided that the whole of the real estate of the husband could not be seized and passed over to his wife to the exclusion of creditors; that alimony is an equitable allowance made to the wife upon the dissolution of the marriage relation, and that it should be based upon the value of the husband’s estate, taking into consideration his debts. No question of fraudulent conveyance wTas involved. While it is true that the claim for alimony is not a debt within the ordinary meaning of that term, and that it must be ascertained and allowed according to equitable principles, yet it is also true that it is a right, contingent to some extent, which becomes vested with the right to a divorce. It can no more be defeated by a fraudulent conveyance than it could if it were fixed and certain as to amount. As bearing upon this question, see Day v. Lown, 51 Iowa, 369; Miller v. Dayton, 47 Iowa, 318; Chase v. Chase, 105 Mass. 386; Bongard v. Block, 81 Ill. 186; Bouslough v. Bouslough, 68 Pa. St. 499; Draper v. Draper, 68 Ill. 21.

2. ' conveyance: aumony: II. Objection is made to rulings of the court in permitting certain questions to be asked of a witness, the answer to which showed that on Sunday, the twenty-ninth day of January, Hosford consulted a lawyér in regard to the property in controversy. It is insisted that, since no divorce proceedings had then been commenced, and plaintiff was not present, the evidence was incompetent and immaterial. But it is shown that Hosford was called from Missouri Valley to Logan, to meet his wife and her attorney with a view to settlement. He went, but no settlement was effected. Immediately after leaving his wife and her attorney, he visited his attorney, and consulted in regard to the property in controversy. We think it was competent to show that fact. It was necessary for the defendant to show the fraudulent nature of the transfer, and the wrongful intent of the husband. The facts shown by the evidence in question were circumstances connected with the transaction which were proper for the jury to consider in determining its true character. They tended to explain the subsequent acts of the husband, and were rightly admitted for that purpose, even though they were not within the knowledge of plaintiff.

3. _ _ 'evidence to III. It is next insisted by appellant that the verdict is not sustained by the evidence. It is shown that but five dollars were paid by plaintiff prior to January 30 ; that Hosford went to Logan to settle with his wife, and failed; that he returned from Logan to Missouri Valley about nine o’clock in the evening of the twenty-ninth; that he and plaintiff talked together after his return for nearly half an hour; that between ten and eleven oí clock that night plaintiff called at the house of a banker in Missouri Valley, and arranged with him to be at his bank at six o’clock the next morning ; that at the time appointed plaintiff, Hosford and the banker met at the bank, a bill of sale of the property was drawn, the purchase price, excepting five dollars, was borrowed of the banker and paid to Hosford, and possession of the property was immediately taken. There was also evidence tending to show that plaintiff knew that Mrs. Hosford was at Logan ; that the judge made an order allowing the writ before he had risen Monday morning, the thirtieth; that the writ was issued,as soon as the clerk’s office was open, and that there was a struggle on the part of the wife to have her writ issued and levied before the husband could dispose of his property. It is shown that plaintiff knew of Hosford’s visit to Logan, and that he feared interference with the property. Also, that it comprised substantially all of the property owned by Hosford. Other facts tending to show fraud and knowledge on the part of plaintiff need not be specified. We think the verdict was sustained by the evidence.

4 ' granteejA Much stress is laid by appellant upon the fact that when plaintiff paid five dollars on account of the purchase on the twenty-first day of January, he had no knowledge, so far as the record shows, of any trouble between Hosford and his wife, and had no reason to anticipate divorce and attachment proceedings. If this is as claimed by appellant, it would not authorize a reversal of the judgment. The sum paid was merely nominal, and, while it may have been' sufficient as between the parties to the contract, it did not justify appellant in an attempt to place the property and its proceeds beyond the reach of the wife. The jury found the value of the property in controversy to be two thousand dollars. Defendant elected to take judgment for fifteen hundred dollars and costs, and it was so rendered. We think it is correct, and it is therefore

Aeeikmed.