Garner v. Philips

Miller, J.

We have carefully read the evidence' submitted in these cases, as well as the arguments of counsel, and have reached the same conclusion as that of the district court as to the character of these conveyances. The evidence, to our minds, most clearly and satisfactorily establishes the fact, that they were made by the parties thereto with the purpose of keeping the property, both real and personal, of Charles S. Philips, out of the reach of his creditors. This fact being established, these conveyances are void and of no effect as against such creditors.

The evidence further shows, however, that subsequent to the conveyance of the real estate by Charles S., to Edward Philips, the latter paid off a mortgage which was a lien on the land conveyed, prior and superior to the judgments of the several plaintiffs, and which at the time of such payment amounted to the sum of $1,642. Since there was no fraud in this transaction, and the plaintiffs are in no manner prejudiced thereby, Edward Philips should be subrogated to the rights of the original holder of this mortgage, and entitled to hold the same as a lien, on the real estate covered hy it, prior and superior to those of the plaintiffs, for the payment of the amount of the mortgage deht with interest as stipulated therein.

With this modification the decree of the district court will he affirmed. The cause will he remanded, with directions to the district court to render a decree in accordance with this opinion, or if the plaintiffs so elect, such decrees will he rendered in this court.

Affirmed.