Collins v. Schump , 16 N.M. 537 ( 1911 )

OPINION OF THE COURT.

ROBERTS, A. J.

1 The appellee has filed no brief in 'this court and we are under the disadvantage of having heard hut one side of the case and being compelled to do a great amount of unnecessary work to enable ns to arrive at a correct conclusion. As the demurrer to the evidence of the plaintiff was sustained by the lower court, the testimony introduced on behalf of the plaintiff is deemed to he true and every conclusion which it tends to prove must be admitted. We can conceive of but two propositions which might have influenced the lower court in sustaining the demurrer; (1st) that fraud sufficient in law to invalidate the deed had not been proven; and, (2nd) that the deed was executed by the •appellant to defraud her creditors.

2 1. We have carefully reviewed the evidence and are of the opinion that it clearly establishes fraud on the part of Mrs. Sclnnnp. The evidence discloses that Mrs.

Collins was an uneducated woman; that she had never had any prior business transactions of any kind; that the real estate in question was the only real estate she had ever owned; that she knew nothing- whatever about law or the courts; that she was alone and unable to communicate with her husband: that immediately after procuring the execution of the deeds Mr. and Mrs. Rehump set about endeavoring to procure witnesses who would testify that they saw the purported consideration named in the deeds paid to Mrs. Collins, even offering to pay witnesses who would testify to these facts; that Mrs. Schump by her persuasion ^prevented Mrs. Collins from consulting an attorney or advising with any other person in regard to the matter. In view of these facts, to refuse to give Mrs. Collins relief would permit a designing and unscrupulous person to take an unconscionable advantage of her. We Ihink the facts show actual fraud and that a court of equity should- give her relief.

3 2. A recovery will not be denied to the appellant on the ground that she executed the conveyance to defraud creditors, when in fact there were no creditors, and no one ivas or could have been injured by the transfer. This principle appears not to have been called to the attention of the lower court. According to the tfestimonjr she did not owe the bank which instituted the suit any money. Rhe had never signed the note and had no creditors. No person was harmed by the conveyance or could have been harmed by it. The mere fact that her husband was indebted to the bank would not create any liability on her part. As stated by the Supreme Court of California, in the case of Chamberlain v. Chamberlain, 95 Pac., p. 659: “It follows, we think, upon the clearest principles of equity, that she could not take refuge behind the pretense that in yielding to her solicitations he committed a wrong against others, thereby depriving him of any redress for her gross misconduct. The law is more indulgent to human infirmity and less tolerant of deliberate and obtrusive depravity. A. cannot lay a trap for B., secure his confidence, induce him to make a conveyance of his property in the expectation that it will he returned, and thereafter retain the fruits of his perfidy on the ground that B. too readily yielded to temptation to save himself at the possible expense of creditors. The greater offense of the tempter overshadows and renders innocuous the weakness of the one of whom advantage is taken.” To the same effect, see Sanford v. Reed, 85 S. W. p. 213. The Supreme Court of Texas, in the case of Rivera v. White et al., 63 S. W. 125, says: “Other authorities,, with better reason, we think, hold that where there is no creditor there is no fraud, and, therefore, no policy of the law to prevent the enforcement of the trust.” Quite a number of authorities are cited in support of the rule in this case. See, also, Salce’s Executor et al v. Salee, 35 S. W. 437; Bloomingdale v. Crittenden, (Mich) 42 N. W. 836. We think the-court erred in sustaining the demurrer to the evidence. The case will therefore be reversed and remanded, with instructions to overrule the demurrer and to proceed with the hearing of the case.