Jones v. Johnson ( 1897 )

Maktin, C. J.

On January 9, 1891, Nannie J. Johnson filed her petition against John W. Jones, Sheriff, to enjoin him from, selling a certain tract of land in said county, of which she claimed to be the owner, upon an execution issued to him out of said District Court, in an action wherein Julius Kuhn was plaintiff and Constant & Johnson were defendants, the Sheriff having levied upon the land and advertised the same for sale, and she not being a party to said action. She set up, as an exhibit, a copy of her deed to the property and it shows the conveyance to have been made April 1, 1889, by C. P. Johnson to her, and that the same was recorded April 3, 1889 ; and these are all the facts alleged in the petition which was verified by said Nannie J. Johnson and upon which a temporary injunction was granted. The Sheriff duly filed an answer and afterward an amendment thereto. These contained a general denial except as to facts thereinafter admitted. It was then stated that the Sheriff had levied said execution, and also another wherein Long Brothers were plaintiffs, both being against Charles P. Johnson and Hiram Constant, said Charles P. Johnson being the husband of Nannie J. Johnson and the real owner of said land, and he having made said deed without consideration and for the purpose of hindering, delaying and defrauding his creditors, and further that said Charles P. Johnson was about to engage in the grocery business and to become largely indebted to said Julius Kuhn and Long Brothers and to the Hutchinson Mill Company, and said Nannie J. Johnson well knew said fraudulent purpose of her husband in the execution of said deed; that she simply holds said deed to prevent the application of the land to .the payment of the just debts of her husband; that the conveyance to her is void and that Charles P. Johnson and the estate of Hiram Constant are insolvent. The defendant prayed that the deed be set aside, and that said judgment be decreed a first lien upon said land, and that the same be sold and the proceeds applied to the satisfaction thereof. The plaintiff below replied by a general denial. The cause was called for trial March 28, 1892, and a jury being waived the issues were submitted to the Court, which, held that the burden of proof was on the defendant below. Certain evidence was offered by him, when the plaintiff objected to the introduction of any testimony, on the ground that the answer and the amendment did not state facts sufficient to constitute a defense, and this was sustained ; whereupon the plaintiff below moved for a perpetual injunction and for costs, which motion was sustained. The motion of the defendant below for a new trial was overruled December 1, 1892, and the defendant below duly excepted to these rulings and orders of the Court. He now insists that plaintiff’s petition did not state facts sufficient to constitute a cause of action, and in this he is right; for the issue of an execution presupposes a judgment, and there is no allegation of its date. It may have become a lien before the delivery of the deed from Charles P. Johnson to Nannie J. Johnson. The answer throws some additional light upon the transaction by stating that Charles P. Johnson, against whom two judgments were rendered, was the husband of Nannie J. Johnson, but it is quite obscure ; and there is no allegation that Johnson was insolvent or even indebted at the time he executed the deed to his wife. Neither party seems to have been willing to plead the facts, and each, perhaps, deemed it best to rely chiefly on vague conclusions of fact and of law. The qualified general denial with the other facts or conclusions pleaded did not justify the Court in granting to the plaintiff below a perpetual injunction without evidence ; for the verification of the petition cannot be treated as evidence on the final hearing. The pleadings ought to have -been recast before the trial.

The judgment will be reversed, and a new trial awarded.

All the Justices concurring.