State v. Malecky , 202 Iowa 307 ( 1926 )

The facts in this case, as disclosed by the record, are about as follows: Bessie and Joseph Malecky are husband and wife, and for some years occupied the residence on Lot 11, Block 3, Daniel's Park First Addition to the city of Cedar Rapids, as a homestead. Joseph was, a part of the time, employed in Chicago, but his wife resided on the premises and looked after the family. Sometime prior to December 5, 1923, an indictment charging Bessie Malecky with the crime of maintaining a liquor nuisance was returned by the grand jury of Linn County. On the above date, after a trial had been commenced, she withdrew her former plea of not guilty, and entered a plea of guilty to the charge. A fine of $1,000 and costs was assessed, and judgment entered against her therefor on December 15th. The homestead was owned jointly by the husband and wife. On December 14th, she conveyed her interest therein to him. The property has been sold to Clorine Goddard, but only a nominal part of the consideration has been paid. The conveyance by the wife to the husband of her interest in the property was voluntary and without consideration. Evidence was introduced showing that the husband, appellee herein, prior to the date of the conveyance and on different occasions had paid fines for his wife in various prosecutions, and attorney fees aggregating more than $1,300. It is not shown, however, that these sums were paid with the expectation that they would be repaid by the wife, or that there was ever any agreement to that effect. The evidence also shows that title to the homestead was originally in the husband, and that he conveyed an undivided one-half interest therein to his wife in pursuance of an oral promise upon her part that she would not engage in the future in any unlawful business, and that she would care for the family, and be a good wife. The Malecky home was not a tranquil one, and divorce proceedings were threatened by one or the other on various occasions, and one action therefor was commenced by the wife, but later dismissed.

It will be observed that the judgment for the fine and costs was entered subsequent to the execution of the deed by Bessie Malecky to her husband. It is the theory of the State that, nevertheless, the relation of creditor and debtor existed between the State and the defendant in the liquor prosecution, upon the entry of her plea of guilty. The argument of counsel proceeds upon the theory of a contingent obligation which the defendant would be required to pay, the entry of judgment alone being necessary to mature it. The general rule as to contingent obligations is well established in most jurisdictions, but it does not appear to have been considered by this court. The doctrine is fully stated and authorities collected in 27 Corpus Juris 473. The nearest approach this court has ever made to the question here presented was in State v. Wallace, 67 Iowa 77. The dictum of that case is that the relation of creditor and debtor arises in cases of this character only after judgment. This seems to us to be sound, and we are of the opinion that the doctrine of a contingent obligation, which creates the relationship of creditor and debtor, is not applicable to the facts of this case. The rule has, however, in a few jurisdictions been applied to actions ex delicto Bongard v. Block, 81 Ill. 186; Chalmers v.Sheehy, 132 Cal. 459 (64 P. 709); Stewart v. Walterboro W.R.Co., 64 S.C. 92 (41 S.E. 827). The contrary rule prevails in a few jurisdictions. Winans v. Beidler, 6 Okla. 603 (52 P. 405);Hutchinson v. Lamb (Vt.), Brayt. 234.

The application of the rule to actions ex delicto is based upon the theory that the terms "creditor" and "debtor," as used in actions for a creditor's bill, are not given their strict or technical meaning. As already stated, the doctrine is not applicable to the present controversy.

The conclusion from the rule stated is that the conveyance was not fraudulent as against the appellant. This makes consideration of other questions discussed by counsel unnecessary. — Affirmed.

De GRAFF, C.J., and FAVILLE, and VERMILION, JJ., concur.