Knowlton v. Hawes ( 1880 )

Maxwell, Ch. J.

This is an action to set aside a conveyance from Thomas Hawes’and wife to John Hawes, which is alleged to be fraudulent as to creditors.

The petition alleges in substance that at the April, 1878, term of the district court for Saline county, the plaintiff recovered a judgment against Thomas Hawes and ~W. P. Grantham for the sum of $420.29. That an execution was duly issued on said judgment, and delivered to the .sheriff of said county, and returned wholly unsatisfied; that after the obligation was incurred upon which said judgment was recovered, but before the rendition of the same, Thomas Hawes conveyed certain real estate in said county belonging to him to his son John Hawes for an alleged consideration of $4,000, but that said John Hawes did not purchase said real estate in good faith, but said conveyance was made for the purpose of delaying and defrauding the creditors of said Thomas Hawes. • Issues' were made up and the cause tried at the April, 1879, term of said court, and judgment rendered in favor of the plaintiff'. The defendants appeal to this court.

It appears from the bill of exceptions that the defendant John Hawes, prior to the alleged purchase of the land in question, was possessed of but little means; that there were 350 acres of the land in disputé, and that it was of the value of $5250; that he gave his father $300 in cash, a team valued at $250, and received a credit of $450 for labor performed, although neither the father nor son state definitely or in what manner it was performed. It also appears that the son gave the .father two unsecured notes — one for $1,000, payable in two years, and one for $2,000, payable in five years from date, and that he assumed the payment of certain mortgages on the land ¡amounting in the aggregate to the sum of $900. The question to be determined is, whether or not the son is a bona fide purchaser of the lands in question. And in our opinion the testimony shows that he is not. It is pretty clear that the transaction was a family arrangement to prevent the property from being applied to the payment of the father’s debt. The rights of a bona fide purchaser, even if a member of the debtor’s family, will be protected when it is clear that the transaction was entered into in good faith and without any design to prevent the application of the debtor’s property to the payment of his debts. But such transactions will be scrutinized very closely to see that they are not used a's a cover for fraud. As there is no error in the record, the judgment of the district court is affirmed.

Judgment affirmed.