Lynch v. Sweetland

[583]

KERRIGAN, J.

This is an action to set aside a conveyance made by defendant, William Sweetland, to his wife, Emma, on the ground that it was made with intent to defraud the plaintiff and other existing and subsequent creditors. Judgment went for the defendants, from which judgment this appeal is taken.

On February 14, Í895, a deed to the property described in the complaint was made to William Sweetland, the purchase price therefor being $1,500, $400 of which was paid by William Sweetland, $500 by his wife out of her separate funds, and the balance, $617, was secured by a mortgage. On December 30, 1897, William Sweetland made and executed a deed of gift to the property to his wife. At that time she was in the state of Kansas, attending her father in his last illness. A few days later William Sweetland delivered the deed to his daughter Edith, with instructions to deliver it to her mother upon her mother’s return from Kansas. The following month, January, 1898, Emma Sweetland returned, and, in accordance with said instructions, Edith delivered the deed to her in her father’s presence. Subsequently, and with money inherited from her father’s estate, Emma Sweetland paid off the mortgage of $617. The deed in question remained in her possession from the time of its delivery until it was recorded in the month of March, 1901.

William Sweetland testified as follows: “I am nearly 75 years of age, and am the husband of the other defendant. I made the deed in question on December 30, 1897, because my wife had put in more than I at the purchase of the land, and my health was poor.” The note referred to in the complaint was given upon the fifteenth day of December, 1900, and defendant, William Sweetland, was a comaker thereof with H. H. Farnham, and was so merely as an accommodation to the said Farnham. From the issues framed by the pleadings, and upon the evidence introduced, the court found in part that the deed was executed and delivered in consideration of love and affection and of large sums of money, and that it was not made with intent to defraud plaintiff or any other person.

There are circumstances in the case which are sometimes indicative of fraud, such as the long delay in the recording of the deed, the assessment of the property for several years