Coldren Land Co. v. Royal , 140 Iowa 381 ( 1908 )

Evans, J.

— The defendants in this case are Lea G-. Royal, his wife, Mabel Royal, and his grandfather, Thomas Leader. The plaintiff is a judgment creditor of the first-named defendant in the sum of $2,613. In May, 1907, and while he was debtor to plaintiff in the amount above stated, the defendant Lea G. Royal paid to his wife the sum of $1,000; the same being substantially all the property lie bad. Of this sum, tbe wife loaned $700 to tbe defendant Thomas Leader. Tbe plaintiff contends that tbe money was received by tbe wife and grandfather in secret trust for tbe principal defendant, and for tbe purpose of defrauding his creditors. The answer of each defendant is a general denial. The claim made in argument in their behalf, however, is that tbe $1,000 paid to tbe wife was so paid in pursuance of a promise made by tbe principal defendant before bis marriage to bis co-defendant. The marriage occurred in November, 1904. This argument is based upon the alleged testimony of tbe defendant Mabel Royal. None of tbe defendants were examined as witnesses on tbe trial either by tbe plaintiff or on behalf of themselves.

i. Evidence: admissions of a party. At some date previous to tbe trial they bad all been examined in certain proceedings supplemental to execution which bad been brought by tbe plaintiff under tbe statute. Tbe examination of each was taken _ . - at that time by tbe shorthand reporter of tbe * court ana preserved. On the trial of the case at bar, tbe plaintiff put in evidence the examination of each defendant as therein taken. For that purpose the plaintiff called tbe shorthand reporter, and she was permitted to read into this record tbe testimony of each defendant at that time. This evidence was all properly admitted, but its effect for tbe purpose of this case is quite different from what it would have been if each had testified to tbe same effect as a witness in this case. Tbe former testimony of each defendant was admissible against him in this case as an admission, and as such only. As such admission it can not be regarded as against any other defendant. The importance of this distinction will appear later in this opinion.

a Same- husband fraudulent conveyances. From the admissions of tbe defendant Lea G. Royal, as so shown, it appears that be did turn over to bis wife the sum of $1,000. From the admissions of his wife show in the same manner, it appears that she did receive from him the sum of $1,000. jprom gUch admissions of the wife it appears, also, that she loaned the defendant Thomas Leader $100 of that money. The admission of the wife is qualified to this extent: “It was an agreement between my husband and me. He was to give me $1,000 as .a wedding-present. He was to give it to me when that mortgage was paid. He gave it to me some time this spring.” Her admission was further qualified by the statement that the promise of the wedding present was made from four to six weeks before the marriage, and that there was no sure promise of marriage at that time unless the $1,000 were paid. This is the testimony which furnishes the basis of appellant’s argument to the effect that there was a valid consideration for tire’ money paid, namely, a promise to pay in consideration of marriage. In view of the fact that this defendant failed to testify on that question in this case, it may well be doubted whether she is entitled to base upon her admission in the former examination a claim in the nature of an affirmative defense. Be that as it may, the statement as we find it in the record is not sufficiently definite, nor sufficiently corroborated, to justify the court in finding that the money in question was paid toiler in pursuance of any definite promise in consideration of marriage, within the meaning of the law.

3. Same, gifts. It is urged by appellee that the promise, if made, was not valid because not- in writing. Appellant replies that it is too late to raise the question of the statute of frauds after performance of the promise. Appellant g0 further and raise the question whether the statute of frauds is available to third parties not privy to the contract. But we do not find it necessary to determine any of these questions. The fact that the law. required such a contract to be in writing in order to be available to the parties themselves, and that the parties to this case failed to reduce the promise to writing, is a circumstance against them on the question of fact. It is conceded that the defendant husband had no other property. The amount therefore of the proposed gift was grossly disproportionate to his circumstances, and this alone is sufficient ground for the court to deny any recognition of it. Gordon v. Worthley, 48 Iowa, 429; Elwell v. Walker, 52 Iowa, 264; Seekel v. Winch, 108 Iowa, 104. For the purpose of this case therefore the transfer to the wife must be deemed voluntary and without consideration. It follows that the decree is supported as to these two defendants by their own admissions.

4. Same: creditors’ suits: The court entered a judgment against the defendant Thomas Leader for $100 and for costs.. We have already noted the fact that the admissions of the other two defendants were not admissible in evidence as . _ _ „ _ _ ~ against their codeiendant Leader, except so far as it was necessary for the plaintiff tio establish the liability of such two defendants preliminary to making any claim against this defendant. The only evidence therefore that there is in this record which connects the defendant Leader with the transaction in any way is his own admission, and which consists of the following, and no more: “I did have the $100 that this witness said she loaned to me, but I ain’t got it now. I spent it. I owe it to her.” There is nothing in this testimony upon which a charge of fraud or fraudulent knowledge can be sustained against this defendant. He has, however, no reason to complain of the decree so far as it ordered him to pay to the plaintiff the $700 otherwise owing by him to Mrs. Royal. To this extent the effect of the decree was to subrogate the plaintiff to the rights of Mrs. Royal, and the'defendant Leader is in no manner hurt thereby.

But we can find nothing in the record to justify a judgment for costs against this defendant. The decree of the lower court therefore will be modified to this extent that the plaintiff shall not be entitled to recover costs of the defendant Leader and that the defendant Leader will be entitled to recover of the plaintiff his costs in both courts. As between the plaintiff, and the other two defendants, these defendants shall be primarily liable for the costs in both courts. As so modified, the decree will be affirmed.

5. Appeal: abstracts. Appellee has filed a motion to strike appellant’s abstract because it shows upon its face that it does not contain all the evidence. But appellants’ abstract does purport to contain it all. It is true that reference is made therein to certain exhibits, which -are described in the abstract, but are not copied. We are unable to see that the exhibits are material to any question presented to us on this appeal.

Appellants counter with a motion to strike appellee’s amended abstract on the ground that the same was unnecessary, and that it was not in proper form, and that it was not filed within ten days after service of the abstracts. The amended abstract is very brief, is easily comprehended, and caused no delay in the submission of the case. Both of the above motions were, submitted with the case. Both are now overruled.

Modified and affirmed.