Ross v. Wellman

Quieting Title—Fraudulent Conveyance—Evidence.—In an action to quiet title, where the defendant claims title under an execution sale against the plaintiff’s grantor, alleging that the plaintiff’s husband was the owner of the land in controversy, and was indebted to the defendant, and had no other property under execution, and that he made a conveyance of the property to a third party who immediately conveyed the same to the plaintiff, and that both conveyances were without consideration, and made to defraud the creditors of the husband of plaintiff, it is competent, on cross-examination of the plaintiff’s husband, to inquire as to a conversation had before the time of the alleged conveyance, for the purpose of showing the intent of the husband to avoid the payment of a debt by the conveyances.

Id.—Voluntary Conveyance—Intent of Donor and Donee.—If a conveyance by a debtor is voluntary, the question as to its fraudulent character depends upon the intent of the donor alone, and the intent of the donee is immaterial.

Id.—Conveyance for Value.—If there was a valuable consideration for the conveyance the knowledge and intent of the grantee is material; but even in that case the intent of the grantor is a material issue in the case, and proof is admissible to show it, although such proof alone would not make a case against the grantee.

Id.—Burden of Proof.—The creditor attacking the sale as fraudulent must first show fraudulent intent in the vendor, and the burden of proof is then on the purchaser to show a valuable consideration, and when this is shown the burden again shifts, and the creditor must show knowledge of the fraudulent intent of the vendor on the part of the vendee.

Id.—Justice’s Judgment — Default — Irregularity—Validity—Evidence.—A judgment rendered by default in a justice’s court, where the record shows that the defendant lived out of the township in which suit was brought, that the summons required him to answer within ten days, and that his default for not appearing was entered four days after the service, but the judgment was not entered until after the expiration of the full period, is at the most only irregular and not void, and is admissible in evidence on behalf of the judgment creditor.

Id.—Execution—Direction to Constable—Return by Sheriff.—The fact that the execution under which the sale was made was directed to a constable of the township, and the return thereof shows that it was received and executed by the sheriff of the county, is at the most an irregularity, and does not render the service void, or make the execution and return inadmissible in evidence.

Id.—Execution, How Directed.—An execution may be directed to the sheriff or to any constable in the county, and each officer is vested with full power to serve the writ, and it is an indifferent matter to whom it is issued.