Mahaska County ex rel. School fund v. Whitsel

McClain, J.—

The forty-acre tract of land mortgaged to plaintiff was acquired by the defendant Frank Whitsel in 1896, and in 1903 he conveyed the same by warranty deed, his wife joining to release dower to. one H. D. Whitsel, Avho immediately thereafter reconveyed the same to the defendants, as owner in common each of an undivided one-half interest; and immediately thereafter the school-fund note and mortgage to plaintiff was executed by the defendants. It is these conveyances from Frank Whitsel to H. D. Whitsel, and in turn from II. D. Whitsel to Frank Whitsel and Nella Whitsel which the intervener alleges to be without consideration and fraudulent as against intervener, at that time a creditor of Frank Whitsel, although the judgment of intervener was not recovered until 1904. The facts relied upon by intervener, as showing the fraudulent character of these conveyances, are that in 1902 the defendant Frank Whitsel, for the purpose of securing credit from intrevener, delivered to it a bond in which he was a co-obligor *338 with one W. T! Allen, by which said obligors bound themselves to pay to the intervener any amount which should become due by them for merchandise delivered to them as its agents in the sale of sewing machines and supplies, and that, in connection with the execution of such bond, said, Frank Whitsel made a statement as to his financial condition, in which he represented himself to be the owner of the real estate in question and other property, real and personal, and in which he further alleged that there was no indebtedness against him in favor of his wife. The genuineness of the signature of Frank Whitsel to this statement was questioned, but we shall assume for the purposes of this opinion that such statement was in fact made by Frank Whitsel.

„ _ husband an<f: Wlfe- ' The only issue as between intervener and the defendants under the evidence was, we think, as to whether Frank Whitsel was, prior to the acquisition of the land in eontroversy, indebted to his .wife, as is claimed by him an(l his wife, to the extent of $350, with interest thereon, for that sum of money received by him from her at the time of their marriage in 1890, and whether the conveyances by which a one-half interest in said real estate was vested in her were in satisfaction of said indebtedness, and whether she accepted said conveyance in good faith in extinguishment of sjich prior indebtedness and not fraudulently for the purpose of hindering or delaying enforcement by intervener of its claim against her husband. There can be no controversy under our authorities that if Frank Whitsel, at the time of his marriage to his wife, received from her $350, with the oral agreement to repay her in the future, even at an indefinite time, and thus became her debtor, he might subsequently, even against creditors who had in the meantime acquired claims as against him, convey to her in satisfaction of such indebtedness real estate or an interest therein; and that his creditors cannot question the validity of such conveyance, although the effect may be to hinder or delay them *339 in tbe enforcement of tbeir claims. Roberts v. Brothers, 119 Iowa, 309 ; Meyer v. Houck, 85 Iowa, 319 ; Sims v. Moore, 74 Iowa, 497 ; Garr v. Klein, 93 Iowa, 313 ; City Bank v. Wright, 68 Iowa, 132 ; Be Vore v. Jones, 82 Iowa, 66 . And it is immaterial that sncb creditors have extended credit on tbe faith of tbe property standing in tbe husband’s name, provided tbe wife has not been guilty of any purpose to enable ber husband to defraud such creditors. Peck v. Lincoln, 76 Iowa, 424 ; Payne v. Wilson, 76 Iowa, 377 ; Neighbor v. Hoblitcel, 84 Iowa, 598 ; Sprague v. Benson, 101 Iowa, 678 ; Muir v. Miller, 103 Iowa, 127 . Fraud is not to be presumed from tbe mere fact of relationship of husband and wife. Carse v. Reticker, 95 Iowa, 25 .

We think there can be no doubt under tbe evidence that defendant Frank Wbitsel did actually receive from bis wife at tbe time of, or soon after, tbeir marriage $350, which was the proceeds of real property owned by ber before tbe marriage in Nebraska, with tbe understanding that be should, use the money and repay it to her in tbe future. There is no evidence that tbe transfer to ber of a one-half interest in tbe real estate in controversy, which was procured for $600, although its present value greatly exceeds that amount, was accepted by ber for any other purpose than as payment of bis indebtedness to ber. Indeed, there is no evidence; that at tbe time such conveyance was made tbe wife bad any knowledge that ber husband was indebted to intervener or any other person. We find no ground, therefore, for setting aside in behalf of tbe intervener the conveyance to Nella Wbitsel of the one-half interest which she claims.

8‘ questiOTs not raised below. Counsel for appellant insists that tbe loan from tbe school fund was not matured, and. that plaintiff was not entitled -to judgment on the note and foreclosure of tbe mortgage. We do not find any provision in tbe note that the indebtedness shall become due on ¿efau]£ in payment of installments of interest, and by its terms tbe note was not matured when judg *340 ment was rendered in plaintiff’s favor. But in this we think there is nothing of which intervener can complain. If plaintiff and the defendants see fit to treat the indebtedness as matured, it cannot be material to the intervener whether or not it is in fact matured under the terms of the contract. At any rate, intervener raised no question for the determination of the trial court with reference to the maturity of the loan, and wé cannot consider that question, which is first represented on this appeal.

The decree of the trial court is in accordance with the evidence, and it is affirmed.