Hayford v. Wallace

SEARLS, C. Action to quiet title to separate parcels of land conveyed to appellant by separate deeds. Defendant, as a defense and by way of cross-complaint, averred the tract of land involved in this appeal was conveyed to plaintiff, who is appellant, by W. B. Hayford, her husband, November 7, 1886, without other consideration than love and affection; that at said date said W. B. Hayford was insolvent, and that defendant was a creditor of said Hayford, and that she secured a judgment, under which the land was sold, and she .claims title under a sheriff’s deed, etc. Defendant also pleaded actual fraud on the part of Hayford, and knowledge thereof on the part of his wife. Defendant had a decree in her favor as to the land conveyed to plaintiff December 7, 1886. Plaintiff moved for a new trial, which was refused, and this appeal is from the order of refusal. The court found, among other things: (1) That W. B. Hayford, the husband of plaintiff, on the seventh day of December, 1886, conveyed the land in question to the plaintiff, who entered into possession, (2) That the only consideration for the conveyance was love and affection, and there was no valuable or money consideration therefor. (3) That at the time of such conveyance W. B. Hayford was insolvent, and unable to pay his debts, and [491]among his creditors at that time was the defendant, Emeline Wallace, to whom he was indebted in the sum of $2,500 upon two promissory notes of $1,250 each. (4) Hayford did not execute the deed to his wife in contemplation of insolvency, or to hinder, delay or defraud his creditors. (5) Plaintiff did not know, at the date of the execution of the deed, that her husband was insolvent, and did not accept the deed with knowledge of any fraudulent intent on the part of her husband.

The second of the foregoing findings is assailed upon the ground that the evidence is insufficient to justify the finding “that love and affection was the only consideration for the deed, and that no valuable nor money consideration was paid therefor.” It is true, there was evidence tending to show that W. B. Hayford, who was a merchant at Colfax, and a member of the firm of Hayford, Perkins & Co., held a policy of insurance upon his life, payable, about 1883, to his then wife, or, in case of death, to said Hayford. His wife died, and he intermarried with the plaintiff and appellant in 1876. The plaintiff testified that the first year of their marriage her husband told her of the policy, and said when it was paid she should have the money, but that when it was paid he wanted to use the money, and promised to give her his note, with interest at ten per cent. This was in 1883, and on April 10, 1886, he gave her a note for $2,000, which was the consideration for the deed in question. Hayford himself testified that he assigned the policy to his wife, and that she kept it until it was due, in 1883, when she delivered it to him for collection, and that he neglected to give her a note, as he had promised, until 1886. On the other hand, there was testimony tending to show that this insurance policy was pledged to Mr. Wallace, the husband of defendant, as security for a debt due him from said Hayford, and remained in his hands until his death, and until it was due, in 1883, when it was delivered to Hayford by order of the respondent, as representative of her deceased husband, and the money collected and paid over to her in satisfaction of the debt, or a portion of it, owing by said Hayford. This involved a contradiction of the statement that the policy was delivered by Hayford to his wife, and retained by her. The court evidently believed the statement of Mrs. Emeline Wallace. In this view the policy did not constitute a gift to the plaintiff, for want of delivery of pos