Downer v. Holgate ( 1903 )

KNight, Justice.

The cause of action in this case, as originally brought, was upon a judgment obtained by the First National Bank of Deming against defendant in error, Henry Holgate, in New Mexico, the facts being, as claimed, that, after said judgment was rendered against said Henry Holgate, who at the time was wholly insolvent, he entered into collusion with the defendant, Roannah M. Holgate, his wife, ánd re-> moved to this State and purchased ■ from the plaintiff in error here an interest in a meat market, said purchase, or the record evidence thereof, having been designedly and with intent to defraud made in the name of the said Roan-, nah M. Holgate, his wife, when, in truth and in fact, she, the wife, never paid any valuable consideration therefor, and the prayer in said original action was, that certain real estate, or a half interest therein, which had been acquired by the proceeds of said partnership of Downer & Holgate, be declared the sole property of said Henry Holgate, and that the said Roannah Holgate be declared as holding the record title to the same in trust for the said Henry. Holgate and his said judgment creditors. The plaintiff in. error, George W. Downer, who held an undivided one-half interest in the same property, was also made defendant, that he might protect his undisputed interest in said property.

The record shows at the time of the commencement of said action Henry Holgate had left the State and deserted his family, who were occupying a part of the realty sought to be affected by the proceeding as a homestead, and said Henry Holgate failed to answer in said cause. Roannah M. Holgate answered that the money used in the original purchase was her money, earned by her in the keeping of a boarding house and the proceeds of the sale of her piano, and that the same was intrusted to the said Henry Holgate, that he might come north and invest the same for her and in her name in the purchase of a market such as was purchased, he, the said Henry Holgate, being a butcher and market man by trade. In passing, it might be stated that the allegations of these conditions as made were supported by evidence, and the court found the same to be true.

Said George W. Downer, as defendant in said action, answered, admitting the co-partnership of Downer & Hol-gate, and alleged that the Holgate in said firm was said Henry Holgate, and not said Roannah M, Holgate, as claimed by her, and said- George W. Downer at the same time filed his cross-petition asking the court to find and decree that the real estate held by said Roannah M. Hol-gate, or the undivided interest therein, be declared the property of said Henry Holgate, and subject to a certain ,claim of said George W. Downer against said Henry Hol-gate arising out of certain dealings between them as partners in the said market business before described.

To this cross-petition the said Roannah M. Holgate answered that the dealings out of which the claim of said-Downer aj-ose were after the partnership of Downer & Holgate had been dissolved and settled, excepting the division of the real estate here in controversy and a small ,amount of market fixtures and utensils included in a lease made and executed by said George W. Downer and said Roannah M. Holgate as partners of the premises formerly occupied by them as partners, and being a part of the real estate here in controversy; and said Roannah M. Holgate, answering further, alleged that .the. indebtedness from said Henry Holgate to said George W. Downer, if any, grew out of a cattle deal in which others than said Downer and said Henry Holgate were partners, to which she, the said Rqannah M. Holgate, had at all times been a stranger, and the trial court found, upon the issue thus joined, for the said Roannah M. Holgate, and it is upon the latter finding and judgment that this case comes for review,'the original plaintiff failing to prosecute an appeal as hereinbefore alleged.

We have examined the many errors claimed to have occurred at the trial of this case, and reviewed the evidence and authorities, and have failed to find any reason why the judgment arrived at and announced by the honorable trial judge should be disturbed.

On the contrary, we are of the opinion that the conclusion arrived at by this court in a former case between the same parties now remaining where thé cause of action was the same, viz., an indebtedness from Henry Holgate to said George W. Downer on account of the same cattle deal, were correct, as viewed in the light of the evidence in this case, and we will quote only a part as giving some of the reasons then and now: “It is impossible to connect the transaction of July, 1896, between Downer and Holgate with any former dealings between them. There is absolutely nothing in the evidence which shows that they were at all related. The contemplated purchase of cattle stands out, so far as appears from the record, entirely independent of any previous business in which they may have been jointly or separately interested. The uncontradicted testimony of the defendant (George W. Downer) shows clearly that Hol-gate was' .to contribute to the joint capital to be employed in the cattle purchase, and he was personally to attend to the buying of the cattle. Instead of doing either, he absconded and' abandoned the proposed'enterprise. He did not devote his money, nor any part of it, to the prosecution of the business, nor for the joint benefit of the parties. He did not buy the cattle as contemplated, nor any of them.” (Holgate v. Downer, 8 Wyo., 334.)

We find no reversible err'or of which this plaintiff in error, George W. Downer, or anyone' else, has 'cause to complain.

The findings and judgment of the District Court are in all things affirmed. Affirmed.

CORN, C. J., and Pottrr, J., concur.