Wilson v. Grey

DOOLING, J. pro tem.

Plaintiff appeals from a judgment refusing to set aside a conveyance from defendant Arthur L. Grey to defendant Hazel A. Grey, his wife, and to subject such property to the satisfaction of a judgment theretofore recovered against defendant Arthur L. Gray.

The complaint alleged the recovery of the judgment in the sum of $5000, the failure to satisfy it except to the extent of $56.18, and that after the indebtedness was incurred the defendant Arthur L. Grey on or about July 3, 1933, had conveyed the property to his wife without consideration and for the purpose of preventing the satisfaction of the judgment. The answer pleaded as affirmative defenses: 1. That plaintiff had been paid by the receipt of certain stock in a corporation; and 2. that the property in question was conveyed to defendant wife on November 8, 1920.

Upon this appeal respondents do not in their brief urge the defense of payment although the trial court found in their favor on that issue. The agreement relied on does not support the finding of payment. The money was lent by plain

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tiff for use in the conduct of a dog coursing track. After the original project failed certain creditors entered into a contract with the owner of the land upon which the track was located, whereby a corporation was to be formed to operate the track, and the signatories were to receive equal amounts of stock in the proposed corporation. Defendants were not parties to this agreement. It was provided in this agreement that the profits to be derived from the venture should be applied after certain pressing claims were first met, 50% to the payment of liens against the property, and 50% to the creditors joining in the agreement, including plaintiff, “until their full amount . . . has been paid. ” It is clear that the parties did not agree that the issuance of the stock in the proposed corporation should constitute payment of their debts. They were later to be paid from profits, and it is not claimed or found that they were paid from profits or indeed that there ever were any profits from the venture.

At the trial, after it developed from the evidence that the deed was delivered to defendant wife on November 8, 1920 as affirmatively pleaded in the answer although not recorded until July 3, 1933, the plaintiff introduced evidence that prior to making the loan to defendant husband which resulted in the $5000 judgment against him, defendant Arthur L. Grey had informed plaintiff that he owned real property, and that plaintiff had caused an investigation to be made and after learning that the property involved in this action stood of record in his name, and relying on that fact, she had advanced the $5000. To this evidence defendants objected on the ground that it was outside the issues, no estoppel having been pleaded in the complaint. The court received the evidence but failed to make any finding on the subject and of this failure appellant now complains.