Linke v. Goodrich , 30 Mich. App. 228 ( 1971 )

30 Mich. App. 228 (1971) 186 N.W.2d 5

LINKE
v.
GOODRICH

Docket No. 8931.

Michigan Court of Appeals.

Decided January 27, 1971.

Joseph E. Mihelich, for defendants.

Before: FITZGERALD, P.J., and QUINN and McINTYRE,^[*] JJ.

PER CURIAM.

Plaintiff, a judgment creditor of James Goodrich, filed this action to set aside as fraudulent conveyances certain deeds from James Goodrich to Rose M. Goodrich, his wife, and Alice Duchene, his daughter, as joint tenants. Plaintiff had judgment as to two parcels of land and defendants appeal.

November 27, 1967, plaintiff obtained a judgment against James Goodrich on an open account for building materials furnished to Goodrich by plaintiff over a period from September 13, 1960, through June 28, 1963. March 4, 1965, Goodrich made the conveyance set aside by the judgment. The present action was filed October 8, 1968.

There is nothing in the record to establish that James Goodrich was insolvent at the time he made the conveyance which was set aside nor any showing that such conveyance rendered him insolvent. The conveyance was not fraudulent under MCLA § 566.14 (Stat Ann 1970 Rev § 26.884).

There is no showing on the record that at the time of the conveyance set aside James Goodrich intended or believed that he would incur debts beyond his ability to pay as they matured. The conveyance was not fraudulent under MCLA § 566.16 (Stat Ann 1970 Rev § 26.886).

The only proof from which actual intent to defraud might be inferred is plaintiff's testimony that about Labor Day, 1966. James Goodrich said to plaintiff: "I figured that you were an easy going guy, and I'm going to take you and that's what I am going to do right now. I am not going to pay you at all." This statement was made about 18 months after the conveyance set aside and does not establish the actual intent required by MCLA § 566.17 (Stat Ann 1970 Rev § 26.887) or MCLA § 566.221 (Stat Ann 1970 Rev § 26.971).

Although transactions between members of a family which adversely affect creditors are to be closely scrutinized, Bentley v. Caille (1939), 289 Mich. 74, and the conveyance set aside was given with little or no consideration, the record does not establish that the conveyance set aside was made in fraud of creditors.

Reversed with costs to defendant.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.