Clark v. Killian — 103 U.S. 766

Majority — Harlan J.

p. 766

Clark v. Killian.

Syllabus

1. The settlement of lands by a man npon his wife is not invalid, if the rights of existing creditors are not thereby impaired.

2. A bill of r.eview is the appropriate mode of correcting errors apparent on the face of the record, and it was in this ease filed in time, less than two years having elapsed since the original decree was passed.

8. The court will not consider errors assigned by the appellee.

Appeal from the Supreme Court of the District of Columbia.

The facts are stated in the opinion of the court.

Mr. Francis Miller for the appellant.

Mr. William J. Miller, contra.

delivered the opinion of the court.

On the 24th of June, 1873, Clark, the appellant, obtained in the court below a judgment at law against John Killian, administrator of William Schlorb, for the sum of $3,819.25, the balance due from the deceased upon dealings with appellant, commencing on the twenty-second day of November, 1865. An execution upon the judgment having been returned no property found, Clark exhibited there his bill in equity against the administrator de bonis non, the widow, and infant children of Schlorb, for the purpose of subjecting to the satisfaction of the judgment-certain real estate which stood in the name of the wife and an infant son of Schlorb.

The real estate is thus described in the bill: 1. Lots 6 and 9, in square 654, of the city of Washington, conveyed Aug. 18, 1858, by Schlorb to John Killian, since deceased, in trust for the use of his wife, and free from liability for the debts of the grantor. 2. Lots 5 and 8, in the same square, conveyed Oct. 23, 1858, .to the same person in trust for the sole and separate use of the wife, and free from liability for the husband’s debts. 3. Lot 2, in the same square, purchased by Schlorb from Baker and by the latter, in pursuance of directions from the father, conveyed, Oct. -5, 1865, to his infant son, George L. Schlorb. 4. Lot 3, in the same square, purchased by Schlorb from Brown, and by the latter, in pursuance of directions from the husband, conveyed, Dec. 21, 1865, to Killian, in trust for the sole and separate use of the wife, and free from the control of the husband. 5. The north half of lot 7, in the same square, purchased by Schlorb from Budle, and by the former’s direction conveyed, May 3, 1866, to, Killian in like trust for the sole and separate use of the wife, and free from the husband’s control. 6. Lot 1, in the same square, conveyed by Schlorb, Dec. 23, 1868, to Killian in trust for the benefit of the wife, and free from the husband’s control.

The bill alleges that these several conveyances were by Schlorb made and caused, to be made with the intent to hinder, delay, and defraud his creditors.

The answer of the widow was explicit in its denial of the fraud charged, and alleged that the deceased, when the several

p. 768

conveyances were made, was free from debt, in comfortable circumstances, and engaged in a prosperous business; that only one piece of tbe property was conveyed in trust for her, after tbe dealings between Clark and him commenced and were in progress. Tbe infant children made a formal answer, by tbeir mother, as guardian ad litem, submitting tbeir rights to tbe protection of tbe court. An answer containing full denials was also filed by tbe administrator de bonis non of Scblorb. Clark filed bis joinder of issue on tbe answers to bis bill, and tbe cause v,as submitted on bill and answers and replications, without proof.

On tbe 17th of February, 1875, the court rendered a decree adjudging that tbe conveyances for lots 1, 3, and tbe north half of lot 7 were null and void, and they were sold under tbe decree for tbe sum of $1,403.47.

Subsequently, on 18th June, 1875, a similar decree was rendered as to lots - 2, 5, 6, 8, and 9. They were also sold, and at tbe commencement of this suit tbe title was in Clark, tbe appellant.

On tbe 4tb of January, 1877, a bill of review was filed by tbe administrator de bonis non, tbe' widow, and infant children of Scblorb against Clark, for tbe purpose of setting aside tbe foregoing decrees for errors of law apparent on the face of tbe record. The bill set out all of tbe foregoing facts, including tbe pleadings in tbe original suit, and Clark demurred. Tbe demurrer was sustained and tbe bill dismissed. Upon appeal to tbe general term tbe decree of dismissal was reversed and tbe demurrer overruled. Tbe cause was then submitted on tbe bill of review. Judgment was rendered setting aside tbe former decree as to lots 2, 5, 6, 8, and 9, and affirming tbe one as to lots 1, 3, and tbe north half of 7.

From tbe last decree both sides prayed an appeal to this court.

Tbe decree of tbe court below, so far as it relates to lots 2, 5, 6, 8, and 9, is in all respects right. Upon tbe face of tbe bill, answers, and other pleadings in tbe original suit, there was v no ground whatever to assail tbe conveyances of those lots. They were made before ■ Clark bád" any dealings with Scblorb,

p. 769

and when, so far as the pleadings in that case disclose, there were no creditors who could complain of any such disposition by Schlorb of his property. Clark, therefore, could not have given credit to Schlorb upon the faith of his ownership of the property. The answers denied the allegations of fraud, and there was no evidence to overcome the denials. The pleadings in that case did not authorize the conclusion, as matter of law, that Schlorb had conveyed or caused to be conveyed the property with the fraudulent intention of thereafter engaging in business, or having business transactions, and, in the event of' financial embarrassment arising therefrom, to withhold it from his creditors. Taking all the circumstances to be as they are set out in the pleadings, it is perfectly clear that the court, in adjudging the conveyances of the lots above named to be null and void, and ordering them to be sold in satisfaction of Clark’s judgment, erred in point of law. Consequently a bill of review was the proper mode of remedying that error. The present bill was filed in time. Thomas v. Harvie, 10 Wheat. 146 .

The appeal prayed by appellees in the court below from so much of the decree as confirmed the original decree as to lots 1, 8, and north half of 7, has never been perfected. We cannot, therefore, notice the errors assigned in the brief of counsel for appellees.

The decree below, so far as appealed from by Clark, is, without prejudice to any right which the appellees may have to an appeal,

Affirmei,

Cases cited

Thomas v. Brockenbrough 10 Wheat. 146 SCOTUS 1825-02-18 p. 769