First National Bank of Haskell v. Ranger

SHAW, J.

Plaintiff, as a judgment creditor of F. B. Banger, brought this action to set aside certain alleged fraudulent transfers of real estate and money, made by him to his wife, the defendant Mae B. Banger, and to subject the property so transferred to the payment of plaintiff’s judgment.

The appeal is from the judgment entered in favor of defendants.

At the time of the transfers, made in the months of March and May, 1914, F. B. Banger, as indorser upon a promissory note, was indebted to plaintiff in the sum of $3,500 and accrued interest. On July 26, 1918, the indebtedness originally evidenced by this note and interest thereon amounted to the sum of $5,485.11, for which a judgment was obtained against Banger. Upon a return

nulla bona

of an execution issued upon the judgment, an

alias

execution was issued, by virtue of which a writ of' garnishment was served upon defendant Mae B. Banger, the purpose of which was to hold and sequester any and all moneys in her possession belonging

to

Banger as judgment debtor of plaintiff. She answered, stating that she was not indebted to him in any sum whatsoever and held no property to which he or his creditors were entitled. Thereupon plaintiff brought this action in the nature of a creditor’s bill, alleging that on March 24, 1914, when Banger, without consideration, conveyed to his wife the two lots of land in question, he was insolvent, or if not insolvent, he made the conveyance in contemplation of insolvency, and further, that at the time of serving the writ of garnishment upon Mae B. Banger she had in her possession upward of $10,000 in money which F. B. Banger had, for the purpose of defrauding his creditors, given her while indebted to plaintiff and others, all of which allegations Mae B. Banger by her answer denied.

As to these issues the court found adversely to plaintiff, whose chief contention is that the finding is not justified by the evidence.

[449]

Section 3442 of the Civil Code provides “that any transfer or encumbrance of property made or given voluntarily, or without a valuable consideration, by a party while insolvent or in contemplation of insolvency, shall be fraudulent, and void as to existing creditors,” and section 3450 of the Civil Code provides that ■ “ a debtor is insolvent, within the meaning of this title, when he is unable to pay his debts from his own means, as they become due.”