nevada reports 1922-1924 (47 nev.).pdf

7/28/2019 Nevada Reports 1922-1924 (47 Nev.).pdf

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REHEARINGS

____________

Rehearings have been denied in the following cases since the sheets carrying the decisions

in this volume were printed:

Hegarty's Estate, July 1, 1924, p. 369.

Hegarty's Estate, July 1, 1924, p. 369.

Humboldt L. & C. Co. v. District Court, July 9, 1924, p,. 396.

Wing v. Wiltsee, July 11, 1924, p. 350.

47 Nev. 1, 1 (1922)

REPORTS OF CASES

DETERMINED BY

THE SUPREME COURT

OF THE

STATE OF NEVADA

____________

Volume 47

____________

1923-1924

____________

47 Nev. 1, 1 (1922) Young v. Holman

No. 2552

YOUNG v. HOLMAN

August 20, 1922. 208 Pac. 871.

1. Appeal and ErrorErrors Appearing from Judgment Roll Considered Where Assignments Were Not Filed,

though upon Appeal Taken after Judgment on Merits.


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An appeal will not be dismissed, but will be heard on the merits, concerning errors appearing from the

judgment roll where assignments were not filed after filing of record transcript, notwithstanding appeal

was taken after trial and judgment on the merits.

Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.

Action by Etta M. Young against James A. Holman and another. Judgment for plaintiff,and defendants appeal. On motion to dismiss appeal. Motion denied. Petition for rehearing

denied.

Milton M. Detch, for Appellants:

There are two appeals. One is from judgment and the other from order denying motion for

a new trial. Nelson v. Smith, 42 Nev. 302. Motion to dismiss appeal is based upon fact that

assignment of errors was not filed within ten days after filing of transcript. The motion cannot

prevail, no assignment of error being necessary on appeal from judgment. Talbot v. Mack, 41

Nev. 245. The supreme court will pass upon judgment roll to determine errors, if any, whichappear upon face of judgment roll. Lockwood v. Marsh, 3 Nev. 138; In Re Quinn's Estate, 27

Nev. 174. Where appeal is from judgment roll alone, errors appearing upon face of judgment

roll need not be presented by assignment of errors. Smith v. Lucas, 43 Nev. 352, affirming

rule laid down in Talbot v. Mack, supra, and Miller v. Walser, 42 Nev. 497.

The allegation of good faith and absence of intent to defraud in answer of grantee defendant,

and not denied in reply, is admitted to be true. Stats. 1915, p. 193. A preferential transfer of

property cannot be GHFODUHGIUDXGXOHQWDVWRRWKHUFUHGLWRUVDOWKRXJKGHEWRULQPDNLQJLWLQWHQGHGWRGHIHDWRWKHUFODLPVDQGFUHGLWRUKDGNQRZOHGJHRIVXFKLQWHQWLRQLI

SUHIHUUHGFUHGLWRUGLGQRWDFWXDOO\SDUWLFLSDWHLQGHEWRUVIUDXGXOHQWSXUSRVH


declared fraudulent as to other creditors, although debtor in making it intended to defeat other

claims, and creditor had knowledge of such intention, if preferred creditor did not actually

participate in debtor's fraudulent purpose. 20 Cyc. 472. A creditor violates no rule of the law

when he takes payment of security for his demand, although others are thereby deprived of all

means of obtaining satisfaction of their own equally meritorious claims. Wheaton v. Neville,

19 Cal. 46; Van Sickle v. Wells Fargo & Co., 105 Fed. 25.

John S. Sinai and Platt & Sanford, for Respondent:

The case having been disposed of on merits, in absence of any assignment of errors appeal

from judgment must be dismissed. Coffin v. Coffin, 40 Nev. 345. Talbot v. Mack and Miller

v. Walser are easily distinguishable from case at bar. In each of those cases the appeal was

from order sustaining demurrer to complaint and judgment thereon, while in instant case


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appeal was taken after trial on the merits in district court. Smith v. Lucas, 43 Nev. 352.

By the Court, Ducker, J.:

This is a motion to dismiss an appeal taken from the judgment and order denying a motion

for a new trial. By stipulation of counsel it was heard in advance of a hearing on the merits.The transcript of the record on appeal was filed in this court on the 7th day of April, 1922.

The notice of motion and motion to dismiss were served upon counsel for appellants on the

20th day of April and filed on the 21st day of April, 1922. The motion to dismiss is based

upon the ground that no assignment of errors has been served and filed within ten days after

the filing of the transcript of the record on appeal in this court, or at all. Appellants contend

that they are entitled to have considered such errors as may appear from the judgment roll

without any assignment thereof. In support of this contention they rely upon the rulings of this

court in Talbot v. Mack, 41 1HY3DF0LOOHUY:DOVHU1HY


Nev. 245, 169 Pac. 25; Miller v. Walser, 42 Nev. 497, 181 Pac. 437, and Page v. Walser, 43

Nev. 422, 187 Pac. 509. In the first two cases it was held that it was unnecessary to assign

errors appearing on the face of the judgment roll, and this ruling was applied in the latter case

to errors appearing from a record consisting of the amended complaint, demand for change of

venue, affidavit in support of the motion, written stipulation, and the order appealed from,

upon the ground that such a record was substantially the same as the judgment roll.

In Talbot v. Mack and Miller v. Walser, the appeal was taken from a judgment renderedafter a demurrer to the complaint had been sustained and the appellants had declined to

amend.

Respondent takes the position that these decisions are not in point, for the reason that in

the present case there has been a trial and judgment upon the merits. It is also urged that this

court, in its decisions in Talbot v. Mack, supra, and Smith v. Lucas, 43 Nev. 348, 186 Pac.

674, has expressly restricted the application of the doctrine that errors appearing upon the

face of the judgment roll need not be assigned from cases where there has been a trial upon

the merits. We do not think that the language quoted from these cases to sustain this

contention is capable of such an interpretation. However, it clearly appears that it was not the

purpose of the court in either of these decisions to designate two classes of cases, in one of

which errors appearing from the face of the judgment roll could be considered on appeal

without an assignment of errors, while in the other class an assignment of such errors is

indispensable.

In Talbot v. Mack, the court merely sought to distinguish the case from Coffin v. Coffin,

40 Nev. 345, 163 Pac. 731, in which, as stated by the court in the former decision, the errors

were not contended for as pertaining to matters properly appearing in the judgment roll.

It is also apparent that the language of the court TXRWHGE\UHVSRQGHQWIURPWKHFDVHRI


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quoted by respondent from the case of Smith v. Lucas to sustain her contention was employed

to distinguish that decision from the cases of Talbot v. Mack and Miller v. Walser, in respect

to the fact that the error contended for in the former case did not appear from the judgment

roll.

There is no valid reason for limiting the rule dispensing with an assignment of errors asestablished in Talbot v. Mack and adhered to in the other cases mentioned to cases where the

appeal has been taken in advance of a trial on the merits. The motion to dismiss the appeal is

denied.

It is so ordered.

On Petition for Rehearing

November 8, 1922.

Per Curiam:

Rehearing denied.

____________


No. 2552

YOUNG v. HOLMAN

July 3, 1923. 216 Pac. 174.

1. Appeal and ErrorOn Appeal on Judgment Roll Alone, Only Errors Appearing on Face

Thereof Considered.On appeal on the judgment roll alone, only errors appearing on the face thereof can be considered.

2. PleadingDenial of Allegations of Answer Not Alleging Affirmative Defense Held


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Unnecessary.In suit to set aside a deed on the grounds of fraud, allegations that all the acts of the grantee, in

connection with making loans to grantor and the purchase of the property by her, were made in good faith

and without intent to defraud grantor's creditors, not constituting an affirmative defense to the action, a

reply thereto was unnecessary.

3. Fraudulent ConveyancesComplaint Not Insufficient for Failure to Allege Grantee's

Participation in Fraud.In suit to set aside a deed for nominal consideration on the ground of grantor's fraud, the complaint held

not insufficient because it did not allege that grantee was a participant in the fraud claimed, it being

immaterial how innocent grantee was.

4. Fraudulent ConveyancesComplaint in Suit to Set Aside a Deed Held Sufficient.To set aside a deed as fraudulent to grantor's creditors, a complaint which showed grantor's indebtedness

to plaintiff, DWUDQVIHURIWKHSURSHUW\IRUQRPLQDOFRQVLGHUDWLRQGXULQJSHQGHQF\RI

DFWLRQLQZKLFKSODLQWLIIREWDLQHGDMXGJPHQWDJDLQVWJUDQWRUPDGHWRGHIUDXGSODLQWLIIRXWRIWKHVDWLVIDFWLRQRIVXFKMXGJPHQWFRQVWLWXWHGDVXIILFLHQWVWDWHPHQWRIIDFWWRPDLQWDLQWKHDFWLRQ


a transfer of the property for nominal consideration during pendency of action in which plaintiff obtained a

judgment against grantor, made to defraud plaintiff out of the satisfaction of such judgment, constituted a

sufficient statement of fact to maintain the action.

5. Appeal and ErrorOn Appeal on Judgment Roll Alone, Finding that Conveyance Was

Made to Defraud Creditors Assumed To Be Supported by Evidence.In suit to set aside a deed alleged as fraudulent to grantor's creditors, finding of the trial court that

plaintiff was a creditor and that a conveyance was made to grantee without actual value consideration at allcommensurate with the value of the property will be assumed, on defendants' appeal on the judgment roll

alone, to have been supported by the evidence.

6. Appeal and ErrorOn Appeal on Judgment Roll Alone, Presumption that Requested

Findings Were Not Supported by Evidence.On appeal by defendant on the judgment roll alone, it must be presumed that findings requested by

defendant were not established by evidence.

Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.

Suit by Etta M. Young against James A. Holman and another. From a judgment and decree

for plaintiffs, and from an order denying motion for new trial, defendants appeal. Affirmed.

Pratt & SanfordandJohn S. Sinai, for Respondent:

It is unnecessary in plea of this nature to charge codefendant or grantee with participation

in fraudulent acts, especially where conveyance was voluntary or for nominal consideration.

Threlkel v. Scott, 34 Pac. 851; Gustin v. Mathews, 70 Pac. 402; Hill, Trusts, 163.

An allegation that conveyance was made with the intent to hinder, delay, or defraud


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creditors is sufficient, especially after judgment, in absence of demurrer (Bull v. Ford, 4 Pac.

1175), and even in face of special demurrer. Threlkel v. Scott, supra; Rountree v. Marshall,

59 Pac. 109.

A voluntary conveyance by husband, to his wife, which is intended or which tends to

defraud existing creditors of husband, cannot be upheld against such creditors. Gwynn v.

Butler, 28 Pac. 466; Bush & 0DOOHWWY+HOELQJ3DF*XVWLQY0DWKHZVVXSUD


Mallett v. Helbing, 66 Pac. 967; Gustin v. Mathews, supra.

It would appear, from fact that no assignment of errors having been filed, that the court

cannot consider anything but judgment roll.

Milton M. Detch, for Appellants.

By the Court, Ducker, C. J.:

This case is a suit in equity to set aside a deed of conveyance upon the grounds of fraud

and to have a certain judgment declared a lien upon the property and premises described in

said deed. For convenience the parties will be referred to as designated in the court below.

Among other things it is averred in the complaint that on the 1st day of March, 1920, and

since, James A. Holman has been indebted to plaintiff for damages inflicted upon her for a

tort committed by him, in that he wilfully, maliciously, wantonly, wrongfully, and unlawfully

ejected her from a certain house and premises owned by him, and then and there under leaseto her, and to the possession of which she was lawfully entitled, which said premises were

situate in the city of Reno, county of Washoe, State of Nevada; that she instituted an action

against him for said tort and recovered a judgment in the sum of $1,680, together with costs

in the sum of $278.01 and interest thereon; that said judgment has been duly docketed by the

clerk of the court, and the amount thereof is now and ever since has been a lien upon all the

real property of said James A. Holman; that the entire amount is now due and owing from

him to plaintiff; that on the 2d day of March, 1921, execution was duly issued on said

judgment and placed in the hands of the sheriff of Washoe County, State of Nevada; that said

sheriff levied upon all the property which he could find in the name of James A. Holman, and

made due return thereon which shows the judgment unsatisfied, and that the said sheriff has

been unable to find any property belonging to James A. Holman in Washoe &RXQW\DQGQRWH[HPSWIURPH[HFXWLRQVXIILFLHQWWRSD\DQ\SDUWRIVDLGMXGJPHQWFRVWVDQGLQWHUHVWWKDWDWWKHWLPHRIVDLGFRQYH\DQFH+ROPDQGLGQRWKDYHDQGDWWKHSUHVHQWWLPHKDVQRWVXIILFLHQWSURSHUW\VXEMHFWWRH[HFXWLRQWRSD\KLVGHEWVDQGHYHUVLQFHKDVEHHQDQGQRZ

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7/376


County, and not exempt from execution, sufficient to pay any part of said judgment, costs,

and interest; that at the time of said conveyance Holman did not have, and at the present time

has not, sufficient property subject to execution to pay his debts, and ever since has been andnow is insolvent.

It is further alleged that after the filing of the complaint, and during the pendency of this

action, Holman executed and delivered to said Julia Holman a certain deed of property

described in the complaint, held and owned by him and situated in the city of Reno; that said

deed was a fraudulent conveyance, made, executed, and delivered in fraud of plaintiff's rights,

with the intent then and there had to defraud her, a creditor of his, of her rights in and to said

property and any subsequent judgment or lien against it; that said conveyance was made for

the express purpose of hindering, depriving, and defrauding the plaintiff as a creditor of her

right to realize upon, collect, and satisfy any judgment that she might secure in said action, by

attempting to transfer ownership held by the said James A. Holman in and to said property tothe defendant Julia Holman, for the express purpose of attempting to place title to said

property in the name of some other person, in order that it might not be subject to levy by

execution in the event a judgment were entered in favor of plaintiff and against defendant

Holman in said action; that as a part and ingredient of the fraud and scheme aforesaid Holman

executed and delivered said deed of conveyance to the defendant, Julia Holman, whose true

name was at the time of said conveyance, and is now, Julia Baker, and that defendant

Holman's scheme and fraudulent purpose was to give a colorable impression that the said

grantee, at said time, was his true and lawful wife, which he then and there knew was not the

fact; that his purpose and reason for naming said grantee as aforesaid, although intentionally

and purposely avoiding to characterize her as his wife in said deed, was to fraudulently and

wrongfully convey the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impression that said conveyance was made to an immediate member of his family, so as to

fraudulently and falsely explain away the nominal consideration thereof, give color to the

bona fides of said conveyance, and render it less open to attack and from suspicion of fraud;

that said defendant, Julia Holman, since the filing of said complaint and action for damages,


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has openly and notoriously used the name Julia Baker, which plaintiff alleges upon

information and belief to be her true name, has appeared in court upon divers and sundry

occasions, by pleading and notarial acknowledgment, under said name, and ever since and

long prior thereto has engaged in intimate, friendly, and fiduciary relations with the said

James A. Holman; that said relationship has been and now is notorious in the community in

which they live, to wit, Reno, Nevada; and plaintiff alleges upon information and belief thatsaid deed of conveyance was fraudulently executed and delivered as aforesaid, without actual

consideration at all commensurate with the then value of said property and premises, and with

the illegal, wrongful, wanton, and wilful intent, knowledge, and purpose then and there had

by the defendant James A. Holman to defraud plaintiff out of satisfaction of such judgment as

she should obtain in said action, by wilfully, illegally, wantonly, and fraudulently depriving

himself of record title to said property and premises and to render himself judgment proof.

To this complaint the defendants filed separate answers, denying, among other matters

alleged in the complaint, the allegations of fraud, and setting up affirmative defenses which

are identical. In substance these defenses are as follows: That on or about the 1st of July,

1917, and up to and including the 1st day of August, 1920, said Julia Holman was the owner

of and conducting a business in the name of Julia Baker, known as 219 Peavine Street, in thecity of Reno, county of Washoe, State of Nevada; that some time in the spring of 1918 she

became acquainted with the defendant, James A. Holman, and that subsequently, DQGRQWRZLWWKHWKGD\RI-XO\WKHVDLGGHIHQGDQW-XOLD+ROPDQZDVPDUULHGWRWKHVDLG

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and on, to wit, the 17th day of July, 1920, the said defendant, Julia Holman, was married to

the said defendant, James A. Holman, at Auburn, Placer County, State of California, and they

ever since have been and now are husband and wife; that on or about the 1st day of April,

1918, long prior to her marriage with the said defendant James A. Holman, and prior to the

execution and delivery of the conveyance in controversy, the defendant Julia Holman, then

known as Julia Baker, at the said city of Reno, loaned to the defendant, James A. Holman,

divers sums of money, amounting in the aggregate to the sum of $10,200; that the said James

A. Holman agreed to pay her on demand, and on numerous and divers occasions the said Julia

Holman has made due demand upon him for the repayment of the sums of money so loaned

by her, and which said sums he has wholly failed, refused, and neglected to pay; that the same

are now due and owing by him to her, together with legal interest thereon; that some time

prior to the 7th day of February, 1920, the said defendant Julia Holman discussed with her

husband the advisability of purchasing the Belle McMillan property, situate at No. 125-127

West Liberty Street, in the city of Reno, and that on the 7th day of February, 1920, the said

James A. Holman, for and on behalf of the said Julia Holman, made the first payment of $250

on said property, the total purchase price being $6,000, and that on the 13th day of February,

1920, for and on her behalf, he paid the balance of the purchase price, being the sum of


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$5,750, and because of the fact that she was still conducting the business at 219 Peavine

Street, in the city of Reno, she directed the owner of the property that the deed for said

premises should be made in the name of James A. Holman; that on that date the deed was

duly made, executed, and delivered by the owner of the premises to the defendant James A.

Holman, for lot No. 6 in block 14 in Lake's South addition, giving a frontage of 47 feet and 6

inches on Liberty Street, with an average depth of 140 feet to an alley, and which said lot issituate in the said FLW\RI5HQRWRJHWKHUZLWKDOOWKHWHQHPHQWVKHUHGLWDPHQWVDQGDSSXUWHQDQFHVWKHUHXQWREHORQJLQJRULQDQ\ZLVHDSSHUWDLQLQJWKDWVXEVHTXHQWWRWKHSXUFKDVHRIVDLGSUHPLVHVWKHGHIHQGDQW-XOLD+ROPDQFDXVHGWREHSODFHGWKHUHRQLPSURYHPHQWVIXUQLWXUHDQGIL[WXUHVRIWKHYDOXHRIDSSUR[LPDWHO\WKDWVKHSDLGIRUWKHVDLGSURSHUW\DQGDOOWKHLPSURYHPHQWVIXUQLWXUHDQGIL[WXUHVWKHUHRQDQGWKHUHLQDQGWKDWDOORIWKHPRQH\VRSDLGRXWZDVPRQH\WKDWVKHKDGDFFXPXODWHGDVWKHUHVXOWRIKHURZQSHUVRQDOHIIRUWVWKDWDWWKHWLPHRIWKHPDNLQJRIVDLGGHHGE\WKH

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city of Reno, together with all the tenements, hereditaments, and appurtenances thereunto

belonging or in any wise appertaining; that subsequent to the purchase of said premises the

defendant Julia Holman caused to be placed thereon improvements, furniture, and fixtures of

the value of approximately $29,000; that she paid for the said property and all the

improvements, furniture, and fixtures thereon and therein, and that all of the money so paid

out was money that she had accumulated as the result of her own personal efforts; that at the

time of the making of said deed by the owner of said property to James A. Holman, he

(Holman) agreed that he would transfer said property to her at any time, upon demand, or assoon as she disposed of the business above referred to as being conducted at 219 Peavine

Street; that at the time of making the first loan by her to him, and up to the present time, he

was and now is insolvent, and that there is no community property as the result of said

marriage; that the money with which the first two payments was made on said property was

kept in the personal private deposit box of the defendant Julia Holman in the First National

Bank of Reno, and by her shortly prior to the completion of said deal withdrawn in cash and

delivered to him, and he subsequently deposited said money in said bank, and it was by him

paid to the owner of said premises, or the agent of said owner, and that the money necessary

for the additions and improvements placed on said property was taken out of her personal

deposit box in said bank, or was procured by the sales of real estate and other property

belonging to her, and that all of the money so paid was from her separate funds, the result of

her personal earnings; that on or about the 1st day of August, 1920, the said defendant Julia

Holman, having disposed of her said business at 219 Peavine Street, moved to the said

premises at No. 125-127 West Liberty Street, in said Reno, and took actual possession of the

same, collecting the rents therefor, paying the bills incurred in the conduct of her premises,

and that since VDLGWLPHVKHKDVKDGVROHDQGFRPSOHWHFKDUJHRIVDLGSUHPLVHV


10/376


said time she has had sole and complete charge of said premises; that shortly after takingpossession of said premises she demanded that he transfer said property to her, and that on, to

wit, the 23d day of November, 1920, he did deed to her the property in controversy, and on,

to wit, the 15th day of December, 1920, she caused the same to be recorded in the office of

the county recorder of said Washoe County; that on or about the 12th day of May, 1921, she

gave the Farmers' and Merchants' Bank of Reno a first mortgage upon the premises in

controversy in this action for the sum of $2,000, and the same is now due, owing, and unpaid;

that at the time of the execution and delivery of said deed there was in force and effect on said

property insurance in the sum of $20,000, and at said time the said James A. Holman caused

an assignment of such insurance to be made to her, and that later, on, to wit, the 20th day of

January, 1921, she had additional insurance taken out in her own name on said property in the

sum of$10,000; that all her acts and doings in connection with the making of the loans as

aforesaid to him, and in the purchase of the premises in controversy, were made in good faith

and without any intent, purpose, or design to defraud the creditors of said defendant James A.

Holman.

The plaintiff filed replies to the affirmative matters set up in the answers. The replies

contain denials of all the allegations of the affirmative defenses, except the averments that

Julia Holman was the owner of and conducting a business in the name of Julia Baker, known

as 219 Peavine Street, in the city of Reno, and her marriage to James A. Holman, and except

also the allegation that all her acts and doings, in connection with the making of the loans to

James A. Holman, and in the purchase of the property in controversy, were made in good

faith and without any intent, purpose, or design to defraud his creditors.The action was tried before the court without a jury. Findings were made in accordance

with the allegations of the complaint, and judgment and decree rendered, VHWWLQJWKHGHHGDVLGHRQWKHJURXQGRIIUDXGDQGGHFODULQJWKHMXGJPHQWLQIDYRURIWKHSODLQWLIIDJDLQVW

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setting the deed aside on the ground of fraud, and declaring the judgment in favor of the

plaintiff against him to be a lien upon the property and premises in controversy. From the

judgment and decree so rendered, and the order denying the motion for a new trial, this

appeal is taken.

1. The appeal is before us on the judgment roll alone. Consequently we can consider only

such errors as may appear upon the face thereof.

2. It is contended that the defendants are entitled to judgment on the pleadings, for the


11/376

reason that the allegations last mentioned in the statement of facts are not controverted by the

replies; that they establish a complete defense to the action and must be taken as true under

the provisions of Stats. 1915, p. 193, sec. 4. The averments in the answers that all of the acts

and doings of the defendant Julia Holman, in connection with the making of the loans to

defendant James A. Holman and the purchase of the property in controversy, were made in

good faith and without any intent, purpose, or design to defraud his creditors, do notconstitute an affirmative defense to the action, and a reply was unnecessary. Giving them

their broadest effect, they are merely a denial of the fraud alleged in the complaint.

3, 4. It is also insisted that the complaint is insufficient because it is not alleged therein

that Julia Holman was a participant in the fraud claimed. This contention is untenable. It is

immaterial how innocent the grantee was. Judson v. Lyford, 84 Cal. 505-508, 24 Pac. 286;

Gustin v. Mathews, 25 Utah, 168, 70 Pac. 402. The complaint sets forth facts showing that

James A. Holman was indebted to plaintiff; that the transfer of the property in controversy by

him to his wife for a nominal consideration, during the pendency of the action in which

plaintiff obtained a judgment against him, was fraudulent, and made by him for the purpose

of defrauding plaintiff out of satisfaction of such judgment. These allegations constitute a

sufficient statement of fact to maintain the action.


Hager v. Shindler, 29 Cal. 47; Bull v. Ford, 66 Cal. 176, 4 Pac. 1175.

5. It appears from the pleadings that the conveyance in this case was made by a husband

to a wife, and in this connection defendants contend that such a conveyance in consideration

ofmoney loaned by her, even though made during the pendency of a suit, is valid as againstcreditors, if not made with the intent to hinder and delay creditors. As to this contention, it is

sufficient to say that the trial court expressly found that plaintiff was a creditor of the

husband, and that the conveyance was made without actual valuable consideration at all

commensurate with the then value of said property, and for the purpose of hindering,

depriving, delaying, and defrauding plaintiff, as a creditor, of her rights to realize upon,

collect, and satisfy any judgment she might secure by transferring ownership of the property

to the defendant Julia Holman. These findings are within the issues, and as we are confined to

the judgment roll we must assume that they are supported by the evidence.

6. As we cannot look beyond the judgment roll, we must also presume that the findings

requested by defendants, to the extent that, while the legal title to said property stood in thename of James A. Holman at the time it was conveyed by the owner to him, said legal title

was taken in his name as trustee for the defendant Julia Holman, were not established by the

evidence. The findings made support the judgment. There are no errors in the judgment roll.

The judgment and decree of the lower court must be affirmed.

It is so ordered.

____________


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47 Nev. 14, 14 (1923) Crumley v. Fabbi

No. 2562

CRUMLEY v. FABBI

April 5, 1923. 213 Pac. 1048.

1. PartiesIntervention of One Claiming Ownership of the Property Properly Allowed in

Suit to Compel Execution of Tax Deed.It is proper in suit to compel execution of a tax deed to allow intervention and determine the respective

claims; the basis of the claims of both plaintiff and intervener being ownership of the property sold at tax

sale.

2. Appeal and ErrorNo Remand Required by Conflicting Findings in View ofUnconflicting Evidence.

There being no conflict in the evidence or dispute as to the facts, conflicting findings on a fact do not

require remand for a specific and unequivocal finding.

3. TaxationAssessment to Decedent's Estate Generally Void.As a general rule an assessment to the estate of a decedent is void.

4. TaxationStatute Does not Allow Assessment to Decedent's Estate.Rev. Laws, 3629, providing that the undivided property of a decedent may be listed to the heirs,

guardians, executors or administrators, as the case may be, and that the administrator shall be directed to

pay out of the funds of the estate all taxes that have attached or accrued against it, does not so far change

the rule of section 3624 that property shall be assessed to the owner as to allow assessment to decedent's

estate.

Appeal from the Fifth Judicial District Court, Nye County;Mark R. Averill, Judge.

Action by J. G. Crumley, in which Peter Fabbi intervened. From an adverse judgment,

intervener appeals. Reversed and remanded, with directions.

Frank T. Dunn andR. G. Taylor, for Appellant and Intervener:

A legal assessment is an indispensable prerequisite to the validity of tax against any

individual, for without valid assessment there can be no lawful attempt to collect tax or

enforce it against any specific property. It must appear that person to whom property isassessed is owner thereof. To say that a person is assessed with property, without alleging that

he was owner, amounts to no allegation at all, so far as a good cause of action is concerned.

People v. De Carrillo, 35 Cal. 37.


13/376


Property assessed in name of wrongful owner and sold for taxes carries no title of does

not affect the title of real owner. Himielman v. Steiner, 38 Cal. 175; 101 Cal. 566; and note

2, L. R. A. 773.

Property cannot be assessed in names of deceased persons or their estates (3 Rev. Laws,2984), but should be listed to heirs, guardians, executors, or administrators, and payment by

them shall bind all parties for their equal proportions. Rev. Laws, 3629.

In tax sale, without judgment, any failure in preliminary steps renders sale void. State v. W.

U. Tel. Co., 4 Nev. 347; Ward v. Carson River Wood Co., 13 Nev. 59. There must be strict

compliance with provisions of statute. 37 Cyc. 1281; Wren v. Dixon, 40 Nev. 199.

W. R. Gibson, for Respondent:

The intervener must have an interest in success of one of the parties against the other, or

an interest against both. Harlan v. Eureka M. Co., 10 Nev. 92. An intervener must take thecase as he finds it (20 R. C. L. 692), and is estopped to aver anything to the contrary. 10 R. C.

L. 675. A public officer making a return of his doings on a writ shall not be allowed to

gainsay the truth of it. 22 R. C. L. 474.

A purchaser at tax sale has property interest in such property sold and cannot be divested

by any act of a stranger or intruder. Byington v. Bookwalter, 74 Am. Dec. 279.

The only persons, other than occupant, entitled to redeem from tax sale are such as claim

in good faith a substantial interest in premises. 21 Ency. Pl. & Pr. 482, note; People v.

Campbell, 143 N. Y. 335; Halsted v. Buster, 104 U. S. 273; Parsons v. Prudential R. E. Co.,

125 N. W. 521.

It is taxpayer's duty to call assessor's attention to any mistake in statement. Not having

done so, he will not be permitted to take advantage of his own wrong. State v. D. V. L. S. &L. Co., 21 Nev. 93.

Any irregularity in delinquent tax roll is defense in DFWLRQWRUHFRYHUWD[HVRQO\WRH[WHQW

WKDWSDUW\KDVEHHQLQMXUHGWKHUHE\


action to recover taxes only to extent that party has been injured thereby. State v. Sadler, 21Nev. 17; State v. Northern Belle M. Co., 15 Nev. 386.

The burden of proving nonexistence of relation of landlord and tenant is upon intervener to

establish beginning of period of adverse possession claimed. Rev. Laws, 4961; 16 R. C. L.

662-664; McDonald v. Fox, 20 Nev. 364; Small v. Robbins, 33 Nev. 304.

By the Court, Coleman, J.:


14/376

The essential facts of this case are few. Early in the year 1918, Tony Gelsomino, who was

then and for a long time prior thereto had been, the owner of the property in question in this

case, died. In May or June of that year an administrator was appointed to administer his

estate. In the following December the property was sold by the administrator, pursuant to an

order of court, to Peter Fabbi, who ever since has held possession thereof and claimed to own

the same. The county treasurer of Nye County, in which the property was situated, claimingthat the property had been assessed for taxation for the year 1918, and that default had been

made in the payment of the same, advertised and sold it as the property of Tony Gelsomino,

the plaintiff becoming the purchaser. Within the period of redemption, Frank Cocca, who had

no interest in the property, tendered to the county treasurer, for the purpose of redeeming

from said tax sale, the amount necessary to effectuate such redemption, which was accepted

as such redemption money. When the time for redemption had expired, the plaintiff, claiming

that Cocca was a stranger to the title, that he had no right or authority to redeem, and that the

reception of the money by the treasurer did not, in legal effect, result in such redemption,

demanded of said officer a tax deed to the property in question. The treasurer refusing to

execute such deed, this action was commenced to compel the execution and delivery thereof,

Cocca being joined as a party defendant. Within due time Peter Fabbi filed his petition inintervention, which the trial court granted.


Thereafter, plaintiff made a motion to strike the complaint in intervention, which was denied.

Upon the trial, judgment was rendered in favor of the plaintiff, from which an appeal was

taken.1. The first point we will consider is the contention of the respondent that the trial court

erred in denying his motion to strike the complaint in intervention. We will not consider

certain objections of the appellant to the method of attack upon the intervention proceedings

made by the plaintiff, but dispose of the question upon its merits. In support of his contention

that the complaint in intervention should have been stricken, counsel says:

The only question involved was the act of Frank Cocca in attempting to redeem a valid

act of redemption. The intervener does not seek to litigate any other proposition than that of

adverse possession, of himself against the plaintiff.

We take it that there is a typographical error in the first sentence and that counsel meant to

say that the only act in question was the attempt of Cocca to redeem from a valid tax sale.With this qualification, we will consider the matter upon the premise stated by the plaintiff.

Plaintiff argues in support of his premise that Fabbi had no interest in the property entitling

him to intervene, and, secondly, that by his complaint he changes the character of the action.

We do not think there is any merit in counsel's position. If Gelsomino were, in fact, alive,

and the assessment, sale, and attempt at redemption had been made as set forth, no one would

say that he could not intervene alleging title in himself, as the intervener has done. By the sale

of the property in question by the administrator of Gelsomino's estate, Fabbi stepped into the


15/376

shoes of Gelsomino. He became the owner of the property, subject only to the claim of the

plaintiff, and can plead any facts which would have been available to Gelsomino. By his

complaint in intervention he was seeking to prevent the cutting off of the title he has E\ZKDWKHFODLPVLVDQLQYDOLGWD[VDOH


by what he claims is an invalid tax sale. The only issue in the case is the ownership of the

property. That is the basis of the plaintiff's claim, and it is the basis of the intervener's claim.

It was certainly proper for the court to determine the respective claims. 20 R. C. L. p. 687,

sec. 26; Faricy v. St. Paul Society, 110 Minn. 311, 125 N. W. 676. The court did not err in

refusing to strike the complaint in intervention.

2, 3. This brings us to a consideration of the merits of the case. While several propositions

of law are urged, we need dispose of but one of them: Was the tax sale based upon a valid

assessment? It is asserted by the appellant that the property was assessed to the estate of

Tony Gelsomino, and that such an assessment is absolutely void, and cannot be the basis of

a valid tax title. In disposing of this question we are confronted with a situation hard to

understand, which is as to the findings made by the trial judge on this point. On March 3,

1922, he filed a written opinion in the case, in which he says:

The assessor seems to have been on the alert, as the property on Main Street (the property

in question) was entered for taxes under the Estate of Tony Gelsomino' for the years 1918,

1919, and 1920, which was entirely proper for the year 1918.

Thereafter, and on March 10, 1922, said judge made and filed his formal findings of fact,

in which he referred to his written opinion, relative to which it is said, which is made a parthereof, in which formal findings of fact he finds that the property in question was for the

year 1918 assessed against Tony Gelsomino. Thus it will be seen that the trial court made

diametrically conflicting finding of fact upon a vital point.

This court has upon numerous occasions pointed out the importance of unequivocal,

specific findings of fact, and has condemned loose, ambiguous findings from which it was

almost impossible to determine just what facts were in reality determined by the trial court. A

trial court should be able to make its formal findings FOHDUZLWKRXWXQGHUWDNLQJWRPDNHLWV

RSLQLRQDSDUWWKHUHRI


clear without undertaking to make its opinion a part thereof. We entertain great hope that the

evil complained of is a thing of the past. If the evidence upon the point were conflicting it

would probably be necessary for a remanding of the case for a specific and unequivocal


16/376

finding upon the question presented, but it seems that there is in reality no dispute as to the

facts. The deputy county treasurer was called as a witness, and produced the assessment roll,

which shows that the property in question was assessed for the years 1918, 1919, and 1920 to

the estate of Tony Gelsomino. The trial court in its written opinion, in passing upon the

motion for a new trial, disposes of the same entirely upon the theory that the property was

assessed to the estate of tony Gelsomino, and relied solely upon section 3629 of the RevisedLaws of 1912 to support the view that such an assessment is valid. Even counsel for

respondent does not contend that it is not the general rule that an assessment to the estate of

a deceased person is void, but relies upon the position taken by the trial court in its opinion on

the motion for a new trial. The general rule that an assessment to the estate of a deceased

person is void is supported by an overwhelming weight of authority. A few of the authorities

so holding are: McKie v. Brown, 199 N. Y. 71, 92 N. E. 131; Adams v. Board of Supervisors,

154 N. Y. 619, 49 N. E. 144; L'Engle v. Wilson, 21 Fla. 461; Territory v. Perea, 10 N. M.

362, 62 Pac. 1094; Miller v. Brooks, 120 Ga. 232, 47 S. E. 646; Jackson v. King, 82 Ala. 432,

3 South. 232; People v. De Carrillo, 35 Cal. 37; Wood v. Torrey, 97 Mass. 321; Fowler v.

Campbell, 100 Mich, 398, 59 N. W. 185; State v. Kenrick, 159 Mo. 631, 60 S. W. 1063;

Morrill v. Lovett, 95 Me. 165, 49 Atl. 666, 56 L. R. A. 634; Coles v. Jamerson, 112 Va. 311,71 S. E. 618, 50 L. R. A. (N.S.) 407; 37 Cyc. 1007, n. 10.

4. We will now consider the proposition suggested by the trial court.

The portion of the statute relied upon reads:

The undivided property of deceased and insane SHUVRQVPD\EHOLVWHGWRWKHKHLUVJXDUGLDQVH[HFXWRUVRUDGPLQLVWUDWRUVDVWKHFDVHPD\EHDQGDSD\PHQWRIWD[HV

PDGHE\HLWKHUVKDOOELQGDOOWKHSDUWLHVLQLQWHUHVWIRUWKHLUHTXDOSURSRUWLRQV


persons may be listed to the heirs, guardians, executors, or administrators, as the case may be,

and a payment of taxes made by either, shall bind all the parties in interest for their equal

proportions. It is hereby made the duty of every district judge, from time to time, to direct

each and every administrator, executor, and guardian * * * to pay, out of the funds of the

estate, all taxes that have attached or accrued against such estate. * * *

Section 3624 provides that the assessor shall assess all property to the person owning it. It

is admittedly the rule in Nevada that the requirement of the statute as to the assessment of

property for taxation and the sale thereof in the summary manner resorted to in the instant

case must be strictly complied with, and that nothing will be presumed in favor of a sale made

in such manner. State v. W. U. Tel. Co., 4 Nev. 347; Ward v. Carson River, etc., 13 Nev. 59;

State v. Nev. Cent. Ry., 26 Nev. 365, 68 Pac. 294, 69 Pac. 1042. The case of State v. Sadler,

21 Nev. 13, 23 Pac. 799, has no application, as that was a suit to recover delinquent taxes, in

which the parties were served with summons and had an opportunity to be heard in court. It

being the general rule that all property must be assessed to the owner, does the qualification

of that rule as provided by section 3629, as quoted, change the situation so far as the instant


17/376

case is concerned? To what extent does that section modify the general provision of the

statute? It simply provides that the undivided property of a deceased person may be assessed

in one of several specific ways; namely, to the heirs, guardians, executors, or administrators,

as the case may be. Was it assessed as provided in this section? Of course not. It is not even

contended that it was. Then the assessment is void, for the reason that no authority is

anywhere given for the assessing of property to the estate of a deceased person. We mustpresume that, if the legislature had intended to give authority for the assessment of property,

as was done in this instance, it would have expressly said so, and, not having done VREXWKDYLQJH[SUHVVO\HQXPHUDWHGRQHRIVHYHUDOZD\VLQZKLFKSURSHUW\PLJKWEHDVVHVVHGHYHU\RWKHUPDQQHURIDVVHVVLQJLVH[FOXGHGXQGHUWKHPD[LP([SUHVVLRXQLXVHVW

H[FOXVLRDOWHULXV


so, but having expressly enumerated one of several ways in which property might be

assessed, every other manner of assessing is excluded under the maxim Expressio unius est

exclusio alterius. Ex Parte Arascada, 44 Nev. 30, 189 Pac. 619. The trial court, it is true,

based its conclusion upon that portion of the section alluded to wherein it is provided that

It is hereby made the duty of every district judge * * * to direct each and every

administrator * * * to pay, out of the funds of the estate, all taxes that have attached or

accrued against such estate. * * *

That provision is clear. The only trouble about it is that it does not in the least affect the

situation in hand. No taxes had attached or accrued against the estate in question for 1918,

because there had been no valid assessment.For the reasons given, it is ordered that the judgment and order appealed from be reversed,

and that the case be remanded to the trial court with directions to enter judgment for the

intervener.

____________

47 Nev. 21, 21 (1923) Rutherford v. Union Land and Cattle Co.

No. 2565

RUTHERFORD v. UNION LAND AND CATTLE

COMPANY

April 5, 1923. 213 Pac. 1045.


18/376

1. InterpleaderPayment of Reward into Court Held Not to divest Subsequent Intervener of

Interest in Deposit.Where defendant was sued for the recovery of a reward offered for capture of persons who had stolen its

property, deposited the sum of the reward in court, and noticed a motion for order substituting others as

defendants and for order dismissing and discharging it from liability to plaintiff and the defendants named,

it thereby admitted title to the reward in some of the named claimants, but such action did not operate to

divest the title of one not a party thereto, and did not divest a subsequent intervener claiming the reward ofan interest in the fund deposited.

2. JudgmentCannot Affect Rights of Third Parties Not before Court.Judgments at law or decrees in equity affecting the rights of parties to property cannot affect the rights of

third parties not before the court.


3. InterpleaderInterpleader Not Sued in Rem.A suit in interpleader is not a suit in rem, affecting the personal status of parties or things.

4. InterpleaderEssential Element of Interpleader Stated.An essential element of the equitable basis of interpleader is that two or more persons have made claims

against the same thing, debt, or duty.

5. InterpleaderStatute Permits Summary Proceeding where Interpleader Lies.Rev. Laws, 5005, permits a summary proceeding in cases where a bill of interpleader would lie, and is

governed by the same principles, except in so far as it has enlarged the scope of the equitable remedy with

reference to conflicting claimants whose titles or claims have not a common origin, or are not identical, but

which may be adverse to and independent of one another.

6. PartiesPrinciples Governing Interpleader Considered with Rule that, where Chancery

Assumes Jurisdiction, it Will Determine Entire Subject-Matter.The substance of the rule that, when chancery assumes jurisdiction of a cause on any equitable ground, to

avoid more than one suit, and in order that a complete and final decree adjusting the rights and equities of

the parties in interest may be entered, it will reach out and draw into consideration the entire

subject-matter, bringing before it all parties interested therein, is the subject-matter of Rev. Laws, 5008,

which empowers the court to bring in other parties when a complete determination cannot be had without

them.

7. InterpleaderEssence of Suit to Protect One from Double Vexation in Respect to One

Liability.

The essence of an interpleader suit is to protect one from a double vexation in respect to one liability.

8. InterpleaderFact that Intervener Has Other Remedy Not Reason why He Should Not

Intervene.Where after payment of a reward into court in suit by a claimant therefor and the entry of an ordersubstituting other claimants as parties defendant an additional claimant of the reward intervened under Rev.

Laws, 5006, the fact that the intervener's right of action against the original defendant on the contract of

reward might not have been affected by any decree rendered in the interpleader's suit was no reason why he

should not have been permitted to intervene.

9. PartiesStatute Liberally Construed.Rev. Laws, 5006, providing that any person may intervene in an action who has an interest in the matter

in litigation, should be liberally construed to effectuate its purpose to secure the determination of


19/376

controversies between several persons as to property rights in one action.

Appeal from the Ninth Judicial District Court, White Pine County; C. J. McFadden,

Judge.


Action by H. H. Rutherford against the Union Land and Cattle Company, in which P. E.

Woodward and others were substituted as defendants, and in which H. C. Nicholson

intervened. From an order striking complaint in intervention from the files and denying

intervener leave to file amended complaint, he appeals. Reversed.

Stoddard & Salisbury, for Union Land and Cattle Co.

A. Jurich, for Woodward.

H. W. Edwards, for Enslow.

J. M. Lockhart, for Murray, Wheeler, and Renear.

V. H. Vargas, for Appellant:

Where bill of interpleader was allowed to relieve defendant from conflicting claimants,

money admitted owing various conflicting claimants was deposited into court; where certainclaimants were substituted as defendants and after such substitution, another person who

claimed interest in fund was permitted to assert his right, held, not violation of procedure.

Bolin v. Ry. Co., 61 S. W. 447.

To avail himself of right to intervene, applicant must have either interest in matter in

litigation or in success of one of the parties to the action, or an interest against both of them.

Such interest must be direct, and not consequential, and one which is proper to be determined

in action in which intervention is sought. Isaacs v. Jones, 53 Pac. 793.

The general rule declared in Harlan v. Eureka M. Co., 10 Nev. 92, is, as Judge Hawley

declared it to be, only a general rule, not an absolute rule nor one applicable to every case.

The true test is language of statute itself: Has intervener an interest in matter in litigation,

in success of either of the parties, or an interest against both? Coffey v. Greenfield, 55 Cal.382. Either would be sufficient. Stich v. Goldner, 38 Cal. 610.

Though a complaint may be utterly insufficient, amendment should be allowed, and cause

permitted to SURFHHG


20/376


proceed. The practice of taking advantage of a defective pleading by motion for judgment,

or by objection to evidence, instead of by demurrer (where demurrer will lie) should not be

encouraged. Parties should not be allowed to secure any greater advantage by such practice

than they would gain by demurring at proper time. California State Telegraph Co. v.Patterson, 1 Nev. 150.

An order made ex parte granting leave to intervene is not violation of procedure. Kimball v.

Richardson-Kimball Co., 43 Pac. 1111, 20 R. C. L. 690.

Whenever objection that there is defect of necessary or proper parties is raised, it is duty of

court in a summary manner to order them in, and to retain cause for that purpose, and to

decide issues upon merits. Pomeroy, Code Remedies, sec. 310.

The intervener cannot retard the principal suit. He must take it as he finds it and be on time

with his pleadings, witnesses, etc., and file his complaint before trial. 20 R. C. L. 688, sec. 27.

C. H. Handwrightand Chandler & Quayle, for Respondent:

When all facts concerning claims of several claimants are before court, the court should, at

time of ordering interpleader, determine to whom funds belong without further pleadings or

proof. But, if controversy between claimants is not ripe for decision at time order for

interpleader is made, the court should direct issues between adverse claimants to be framed in

such manner as will best serve interests of justice. The court may even direct that a separate

action at law be brought to establish rights of separate claimants. 15 R. C. L. 232; 23 Cyc. 32;

note in 35 Am. Dec. 709.

The affidavit required by interpleader act is merely a substitute for a bill. Starling v.

Brown, 7 Bush, 164.

If judgment between original parties would in no way affect right of intervener to sueeither or both parties, he has no such interest in matter in litigation as will entitle him to

intervene. Clark v. Eureka &RXQW\%DQN)HG


County Bank, 116 Fed. 534; State v. Mack, 26 Nev. 430; Gibson v. Hjul, 32 Nev. 360.

The taking of interpleading proceedings against certain claimants and deposit of money intocourt, and discharge of stakeholder from liability to claimants named, amounts in law to

conclusive admission that the money belongs to one or more of the named claimants, and is

to be paid to that one of them who can establish best right to it. If all but one of them

disclaims or are defaulted, the money automatically goes to survivor without any proof on his

part. 23 Cyc. 30; U. P. Ry. Co. v. Belek, 211 Fed. 697-704; Maggi v. Cassidy, 181 N. W. 27.

This being so, how can this appellant who was not one of the interpleaded claimants have any

claim to or interest in that particular fund?


21/376

By the Court, Ducker, C. J.:

The Union Land and Cattle Company offered a reward of $2,500 for the capture of two

persons who had stolen its property and who had shot two of its employees when they were

endeavoring to recover the property.Thereafter, on June 2, 1920, respondent instituted an action against the company for the

recovery of the reward. After the institution of the action the company noticed a motion for an

order of the court substituting P. E. Woodward, W. S. Enslow, F. T. Murray, Frank Wheeler,

and D. B. Renear as defendants in the action in the place and stead of the defendant company,

and for a further order dismissing the company and discharging it from any and all liability to

the respondent and said last-named persons, upon the company's having deposited in court, or

having delivered to such persons as the court should direct, the sum of $2,500 offered by the

company as a reward.

An affidavit in support of the motion was made by the president of the company showing,

among other matters, that the persons sought to be substituted had made demands upon the

company for the reward, or some part thereof, and it was ignorant of the respective ULJKWVRIHDFKDQGDOORIWKHVDLGFODLPDQWVDQGGLGQRWNQRZZKLFKLIDQ\ZHUHHQWLWOHGWRUHFHLYH

WKHUHZDUG


rights of each and all of the said claimants, and did not know which, if any, were entitled to

receive the reward. An order was duly made substituting them as defendants in the place ofthe company, conditioned for its discharge from further liability to the respondent and the

substituted defendants, upon the company paying the amount involved to the clerk of the

court. Thereafter the money involved was paid by the company to the clerk of the court, and

an order was made dismissing the action as against the Union Land and Cattle Company.

On February 9, 1922, the court made an order prescribing the pleadings and framing the

issues between the then parties to the action. After this order was made, the appellant,

Nicholson, filed his complaint in intervention, and on February 17, 1922, by order of the

court, was permitted to become a party to the proceedings.

Among other matters, it was alleged in the complaint in intervention that shortly after the

offer of said reward, on being informed of such offer and promise, and confiding in and

relying upon the said offer of reward, the said H. C. Nicholson, being then and there a privatecitizen of the United States of America and a resident of the city of Ely, county of White

Pine, State of Nevada, did, on or about the 23d day of February, 1920, at the town of East

Ely, county and state aforesaid, assist in the apprehension and capture of one Leonard W.

Fristoe, one of the robbers for whom said reward was offered, and did thereafter assist in

placing said Leonard W. Fristoe in the custody of the sheriff of White Pine County, Nevada.

That said intervener is informed and believes and upon such information and belief alleges


22/376

the facts to be that, after the apprehension of said robbers referred to in said reward, the said

Union Land and Cattle Company, not knowing to whom said reward should be paid, but

admitting its liability to some one for the apprehension of said robbers, deposited with the

clerk of the above-entitled court the amount of said reward and WKDWWKHVDLGUHZDUGQRZLVLQWKHKDQGVRIVDLGFOHUNRIVDLGFRXUWLQWKHDERYHHQWLWOHGDFWLRQ


that the said reward now is in the hands of said clerk of said court in the above-entitled

action.

That said intervener is informed and believes and upon such information and belief alleges

the facts to be that on or about the 22d day of February, 1920, and prior to the capture and

arrest of said Leonard W. Fristoe, the said Joseph W. Bell, the other of said robbers, did

voluntarily surrender and give himself up to and was then in the custody of the sheriff of

White Pine County, State of Nevada, thereby rendering its impossible for said intervener or

any one else to comply with the terms of the said offer of reward as to the capture of said

Joseph W. Bell.

Thereafter the respondent, Rutherford, moved the court for an order vacating and setting

aside the order granting appellant leave to file his complaint in intervention, and for an order

striking the same from files in said cause, upon the grounds: Firstly, that said order was made

ex parte and without notice of the application therefor having been given to respondent;

secondly, that the money paid into court in said cause by the original defendant, Union Land

and Cattle Company, was so paid for the benefit only of the claimants thereto specified in the

affidavit of intervention made in said cause in behalfof the Union Land and Cattle Company,and that, after such payment into court, and the discharge of the Union Land and Cattle

Company from the action, no person not mentioned in said affidavit of interpleader is entitled

to intervene or claim any portion of the money so deposited in court; thirdly, that said

complaint in intervention does not show that H. C. Nicholson (appellant) has an interest in

the matter in litigation in said cause, or in the success of either or any of the parties, or an

interest against both, sufficient to entitle him to intervene.

The motion was granted on the second and third grounds set forth therein, and an order

entered vacating the previous order granting leave to file the complaint in intervention, and

striking the same from the files. Thereupon counsel for appellant asked leave of court to

VHUYHDQGILOHDQDPHQGHGSHWLWLRQLQLQWHUYHQWLRQZKLFKZDVGHQLHGE\WKHFRXUW


serve and file an amended petition in intervention, which was denied by the court. Thereafter


23/376

counsel for respondent duly noticed a motion asking leave to file an amended complaint,

which motion was denied by the court. From the orders striking the complaint in intervention

from the files and denying appellant leave to file an amended complaint in intervention, this

appeal is taken. Error is assigned on these grounds.

1. It is contended by respondent that appellant, who was not one of the interpleaded

claimants, has no claim or interest in the particular fund which is now the subject-matter ofthe litigation, and is not entitled to intervene.

In this respect it is argued that, while he may have had an interest in the subject-matter of

the litigation when the action was originally instituted by the respondent against the Union

Land and Cattle Company on the contract of reward, the subject-matter changed when the

money offered as a reward was paid into court, and the company discharged from liability to

the parties then in court; that, under the rules of interpleader, these proceedings amounted to

an adjudication that the fund deposited in court belonged to the one of the parties impleaded

who could establish the best right to it, or some portion of it.

We are not impressed with the theory advanced by respondent that the institution of the

interpleader suit by the Union Land and Cattle Company, in which the substituted defendants

were named in its affidavit, and the subsequent procedure in court, operated to change thesubject-matter of the original actionthat is, the contract of rewardand deprived appellant

of any interest in the fund deposited in court.

Suppose, instead of money offered as a reward, the subject-matter of the litigation was

personal property of another character; could it be said that the interpleader proceedings

deprived appellant of his interest in it, if he had any?

2. 3. The fund deposited in court represented the consideration of the contract on the part

of the company. The effect of the affidavit was to admit title to WKLVFRQVLGHUDWLRQLQVRPHRIWKHQDPHGFODLPDQWVDVDJDLQVWWKHFRPSDQ\EXWLWVXUHO\GRHVQRWRSHUDWHWRGLYHVWWKH

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this consideration in some of the named claimants as against the company, but it surely does

not operate to divest the title of one not a party to the proceedings. A decree of the court in

the interpleader proceedings could not operate to that extent. Judgments at law or decrees in

equity affecting the rights of parties to property cannot affect the rights of third parties not

before the court. A suit in interpleader is not a suit in rem affecting the personal status of

parties or things. Life Insurance Co. v. Gooding, 19 Tex. Civ. App. 490, 49 S. W. 123;

Expressmen's Assn. v. Hurlock, 91 Md. 585, 46 Atl. 957, 80 Am. St. Rep. 470; Cross v.

Armstrong, 44 Ohio St. 613, 10 N. E. 160.

As stated by the Supreme Court of the United States:

The general doctrine that, where there is a fund in court to be distributed among different

claimants, a decree of distribution will not preclude a claimant not embraced in its provisions,

but, having rights similar to those of other claimants who are thus embraced, from asserting


24/376

by bill or petition his right to share in the fund, is established by numerous authorities, both in

England and the United States. In the Matter of Howard, 9 Wall. 175-187 (19 L. Ed. 634).

4, 5. It is true an essential element of the equitable basis of interpleader is that two or

more persons have made claims against another for the same thing, debt, or duty. Orr Water

Ditch Co. v. Larcombe, 14 Nev. 53. It is likewise true that section 5005 of the Revised Laws

of Nevada, under which the interpleader proceedings were instituted in this case, merelypermits a summary proceeding in cases where a bill of interpleader would lie, and is governed

by the same principles, except in so far as the statute has enlarged the scope of the equitable

remedy with reference to conflicting claimants whose titles or claims have not a common

origin, or are not identical, but which may be adverse to and independent of one another.

6. But the principles governing equitable interpleader must be considered in connection

with the rule of equity that, when a court of chancery has once DVVXPHGMXULVGLFWLRQRIDFDXVHRQDQ\HTXLWDEOHJURXQGLWZLOOIRUWKHSXUSRVHRIDYRLGLQJPRUHWKDQRQHVXLWDQGLQRUGHUWKDWDIXOOFRPSOHWHHIIHFWXDODQGILQDOGHFUHHDGMXVWLQJWKHULJKWVDQGHTXLWLHVRIDOOSDUWLHVLQLQWHUHVWPD\EHHQWHUHGDQGHQIRUFHGUHDFKRXWDQGGUDZLQWRFRQVLGHUDWLRQDQGGHWHUPLQDWLRQWKHHQWLUHVXEMHFWPDWWHUEULQJLQJEHIRUHLWDOOSDUWLHV

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assumed jurisdiction of a cause on any equitable ground, it will, for the purpose of avoiding

more than one suit, and in order that a full, complete, effectual, and final decree adjusting the

rights and equities of all parties in interest may be entered and enforced, reach out and draw

into consideration and determination the entire subject-matter, bringing before it all parties

interested therein. 10 R. C. L. 370. The substance of this rule is the subject-matter of section5008 of the Revised Laws of Nevada, which empowers the court to bring in other parties

when a complete determination of the controversy cannot be had without their presence. It

would seem, therefore, that the court in this case, having assumed jurisdiction on equitable

grounds, is not without power to bring in other parties having an interest in the subject-matter

of the suit. Statutes similar to the foregoing section have been liberally construed by the

courts so as to accomplish substantially the same results as intervention.

7. The very essence of an interpleader suit is to protect one from a double vexation in

respect to one liability. Fogg v. Goode, 78 Fla. 138, 82 South. 614; 2 Storey's Eq. Juris. (14th

ed.) par. 1118. The Union Land and Cattle Company has availed itself of the remedy open to

it to avoid a double vexation, with that very end and aim in view. If the intervention ofNicholson is denied, the sole purpose of the remedy which the law contemplates the company

might avail itself of is defeated, and, as said in Newhall v. Kastens et al., 70 Ill. 156, if, under

the circumstances, we should hold that Nicholson cannot be made a party, chancery would

be wanting in its power to do justice where the law, by reason of its universality, fails, if it

could afford no relief under the facts presented by this record.

In support of their contention counsel for respondent cite and discuss several cases to the

effect that a bill of interpleader admits the indebtedness of the complainant to some of the


25/376

defendants, and, if one defaults or is finally determined to have no claim, the fund belongs to

the other, as a matter of course. With the H[FHSWLRQRI0LFKLJDQHWFY:KLWHHWDO0LFK


exception of Michigan, etc., v. White et al., 44 Mich. 25, 5 N. W. 1086, these cases were

decided without any reference to an intervening claimant, and for the reasons heretofore given

we are unable to consider the Michigan case or the others as authorities on the question

before us. The following cases, in which a claimant having an interest in the fund in

controversy was permitted to intervene in an interpleader proceeding, have been called to our

attention: Wineman v. Lillibridge, 117 Mich. 320, 75 N. W. 617, and Bolin v. St. Louis S. W.

Ry. Co. of Texas et al. (Tex. Civ. App.) 61 S. W. 444.

8. Appellant intervened pursuant to section 5006 of the Revised Laws of Nevada, which

reads in part:

Any person may, before the trial, intervene in an action or proceeding, who has an

interest in the matter in litigation, in the success of either of the parties, or an interest against

both.

Respondent contends that appellant has not the interest contemplated by the statute to

entitle him to intervene, because his right of action against the Union Land and Cattle

Company on the contract of reward, if he has any, will not be affected by any decree which

may be rendered in the interpleader suit. The fact that intervener may have another remedy is

no reason why he should not be permitted to intervene. On this point authorities are ample

and satisfactory. People v. California Safe Deposit Co., 168 Cal. 241, 141 Pac. 1181, L. R. A.1915a, 299; Potlatch Lumber Co. v. Runkel, 16 Idaho, 192, 101 Pac. 396, 23 L. R. A. (N.S)

536, 18 Ann. Cas. 591; Walker v. Sanders, 103 Minn. 124, 114 N. W. 649, 123 Am. St. Rep.

276, and note; Taylor v. Bank of Volga et al., 9 S. D. 572, 70 N. W. 834; 20 R. C. L. 689; 11

Ency. Pl. & Pr. 502.

Counsel for respondent contend that the case of Harlan v. Eureka Mining Co., 10 Nev. 92,

controls this case, and hence the judgment must be affirmed. The facts of the instant case do

not bring it within the rule asserted in the former case. It will be observed that the Harlan case

was an action at law, while the present SURFHHGLQJLVDVXLWLQHTXLW\ZKHUHLQZHDUHFRQWUROOHGE\HTXLWDEOHSULQFLSOHV


proceeding is a suit in equity, wherein we are controlled by equitable principles. The court in

the Harlan case was particular not to lay down the rule there declared, as one governing every


26/376

situation, but as a general rule. Without expressing any opinion as to our view of that case,

we content ourselves with saying that, since no one loses or gains by a judgment or decree, in

the strict sense of the term, unless he is a party or in privity with one who is, to rigidly enforce

the rule adopted in Harlan v. Eureka Mining Company, would necessarily preclude any one

from intervening in an action or suit, except privies. Such cannot be said to have been the

intention of the legislature in adopting the statute authorizing intervention.9. We think it should be liberally construed to effectuate its purpose to secure the

determination of controversies between several persons as to property rights in one action,

and thus prevent unnecessary litigation.

As appellant's complaint in intervention shows an interest in the matter in litigation, the

orders of the district court vacating the order giving him leave to intervene, and striking his

complaint in intervention from the files, should be reversed.

It is so ordered.

____________

47 Nev. 33, 33 (1923) Moore v. De Bernardi

No. 2556

MOORE v. DE BERNARDI

April 7, 1923. 213 Pac. 1041.

1. Appeal and ErrorFinding of Trial Court Conclusive on Appellate Court when Evidence

Is Conflicting.Where there is a substantial conflict in the evidence, the finding of the trial court is conclusive upon the

appellate court in the absence of a showing that a wrong conclusion was reached.

2. Appeal and ErrorWhere Finding Assailed as Being Contrary to Evidence, Court Deemed

to Have Found as True Evidence Favorable to Prevailing Party.The rule which governs the appellate court in reversing a verdict alleged to be contrary to the evidence,

that the jury must be deemed to have found to be true the evidence that is most favorable to the prevailing

party, applies to findings by court.

3. Attorney and ClientAttorney's Authority to bind Client Extends to Acts Necessary for

Prosecution of Business for which Employed.An attorney's authority to bind his client extends only to such acts and agreements as are necessary for thedue prosecution of the business in connection with which he has been employed, and he has no implied

power to bind his client by an agreement collateral to and independent of the subject-matter of his

employment.

4. Attorney and ClientClient Not Bound by Unauthorized Agreement of Attorney to

Convey Land.A client is not bound by an unauthorized agreement of his attorney to convey land.


27/376

5. TrustsEvidence held to Establish Agreement whereby Bank Agreed to Foreclose

Property for Benefit of Occupant.Evidence heldto show that defendant bank, through its cashier, made a parol agreement with defendant

occupant of land whereby bank agreed to proceed with foreclosure of property for occupant's use and

benefit, and convey the legal title to him for a consideration upon acquiring the legal title after period of

redemption expired.

6. Frauds, Statute ofRefusal to Perform a Void Parol Agreement Is Not a Fraud in Law orin Equity.

The mere refusal to perform a parol agreement, void under the statute, may be a moral wrong, but it is not

a fraud in law or in equity.

7. Frauds, Statute ofRefusal to Perform Parol Agreement to Convey Land Not, of Itself,

Sufficient to Take Agreement Out of Statute.A refusal of a bank to carry out its parol agreement to convey land to defendant for a consideration after

the bank obtained sheriff's deed heldnot, of itself, a breach tainted with fraud to take the agreement out of

the statute of frauds.


8. TrustsTrusts ex Maleficio Excepted from Operation of Statute of Frauds.

Trusts ex maleficio are excepted from the operation of the statute of frauds.

9. TrustsViolation of Parol Agreement to Foreclose Property for Benefit of Occupant Holding Interest in

Land Held to Create Trust ex Maleficio.

Where defendant occupant of land had an existing interest therein with the mortgagor, but, in reliance

upon a parol agreement with the mortgagee bank that the latter would foreclose for defendant's use and

benefit, and convey land to him upon acquiring title, if he would not become a bidder to protect his

interest in the property, defendant refrained from protecting his interest so that he could acquire title tothe land in its perfected state through the foreclosure proceeding, held, that the refusal of the bank to

convey was such a fraud as operated to convert the bank into a trustee ex maleficio.

10. TrustsPurchaser at Foreclosure Sale Taking Title for Another, but Violating His Trust,

Becomes Trustee ex Maleficio.Where one having an interest in land is induced to confide in the verbal promise of another that he

will purchase for the benefit of the former at a sheriff's sale, and in pursuance of such promise allows him

to become the holder of the legal title, a subsequent denial by the purchaser of the confidence is such a

fraud as will convert the purchaser into a trustee ex maleficio.

11. TrustsConventional Relation of Trustee and Cestui Que Trust Need Not Exist to Create

Constructive Trust.

To create a constructive trust it is not necessary that a conventional relation of trustee and cestui quetrust, or that any express fiduciary relation should exist between original wrongdoer and the beneficial

owner of land, since such relations arise in invitum for the purpose of working out justice in the most

efficient manner.

12. TrustsTrust Agreement May Not Be Avoided Because Promising Party Was Moved by

Benevolent Considerations Only.A trust may not be avoided on the ground that the party promising was moved merely by benevolent

considerations, since such considerations constitute the foundation of almost every trust, and a trustee

should be held to account in the same spirit in which he originally contracted.


28/376

Appeal from Second Judicial District Court, Washoe County;Edward F. Lunsford, Judge.

Action by Kate Moore against Rick De Bernardi, in which the Washoe County Bank was

made a defendant. Decree for defendant De Bernardi, and plaintiff appeals. Affirmed. On

rehearing, this opinion affirmed.


Sardis Summerfield, for Appellant:

Specific performance to convey land made by attorneys of parties to action in which land

is in dispute, will not be decreed in absence of specific authority in such attorneys to make

contract. Hagerman v. Bates, 38 Pac. 1100. No such agreement is valid unless affirmed and

ratified by the principals. Bank v. McEwen, 76 N. E. 222.

Ordinarily there is no implied power vested in attorney at law to bind his client by

contract. Haselton v. Florentine Co., 94 Fed. 701; Haynes v. Tacoma Co., 34 Pac. 922.

A general retainer does not authorize attorney to enter into agreements regarding his

client's property. Hagerman v. Bates, supra; Scully v. Book, 28 Pac. 556; 4 Cyc. 945-6;

Weeks on Attorneys at Law, sec. 219.

Constructive trusts do not arise by agreement or from intention, but from operation of law.

39 Cyc. 169; Bowler v. Curler, 21 Nev. 161; 28 R. C. L. 1232.

Though some decisions apparently hold to the contrary, it is the generally accepted rule

that mere verbal agreement, by which one of the parties thereto promises to buy in at judicialsale, lands in which the other has interest and to hold same for latter's benefit, does not, in

absence of other circumstances, create trust enforceable in equity, even though the agreement

is carried out to extent that promisor acquires property at such sale. The agreement is within

the statute of frauds. 26 R. C. L. 1244; Strasner v. Carroll, 187 S. W. 1057; Minot v.

Mitchell, 95 Am. Dec. 685, and note.

Specific performance of contracts to sell land will not be enforced when defendant had no

title to lands of which conveyance is sought to be compelled. Kennedy v. Hazelton, 32 L. Ed.

576; Adair v. Adair (Or.), 29 Pac. 193.

Specific performance will never be decreed where the party can otherwise be fully

compensated. Memphis v. Brown (U.S.), 22 L. Ed. 264; Texas Co. v. Central Co., 194 Fed. 1.

A constructive trust always arises ex maleficio; it is FRQVWUXFWHGE\ODZDQGQRWE\SDUWLHV



29/376

constructed by law, and not by parties. If parties have attempted to construct it, the law will

not construct one. Through failure to comply with the statute it becomes an invalid express

trust. Spaulding v. Collins (Wash.), 99 Pac. 306.

Continued possession by grantor after full conveyance by him while in possession of property

conveyed is not constructive notice. Brophy M. Co. v. B. & D. M. Co., 15 Nev. 113, which

refused to follow Pell v. McElroy, 36 Cal. 268, but which was cited with approval in

McDonald v. Fox, 20 Nev. 368; Gruber v. Baker, 20 Nev. 462.

Boyd & Curler, for Respondent:

The whole case involves itself around the separate defense and counterclaim of defendant,

and the principles of equity upon which he believes he is entitled to judgment in his favor.

The evidence clearly establishes a constructive trust in favor of respondent, by virtue of his

agreement with the bank. It is evident from all the facts in this case that the fraud complained

ofthat is, the neglect and refusal of the bank to notify respondent of amount due and to give

him the deedimmediately impressed the property with a constructive trust, and this trustfollowed property to vendee of bank, unless such vendee could show that she was a bona-fide

purchaser without notice. Such property is taken completely out of statute of frauds.

Courts of equity have exercised their powers to enforce contracts which in good faith

ought to be complied with and will do this by impressing property with a trust for use and

benefit of one who would be defrauded unless court of equity gave its aid in enforcing

agreement. Pomeroy (2d ed.), sec. 1044.

Where a person acquired legal title to land by an intentionally false verbal promise and

seeks to retain property as his own equity will not regard such person as holding property

charged with a constructive trust, and will compel him to fulfil trust by conveying according

to his agreement. Isenberg v. Goldsmith, 113 Pac.


1127; Pomeroy (2d ed.), 1005, and footnote; Brown's Estate v. Stair, 136 Pac. 1003.

Equity will not permit statute of frauds to be used as instrument of fraud. When person,

through influence of confidential relation, acquires title to property, or obtains advantage

which he cannot conscientiously retain, the court will grant relief. Bowler v. Curler, 21 Nev.

158; Nehls v. Stock Farming Co., 43 Nev. 261.

It is well established that the open, visible, notorious, and exclusive possession of land is

either notice itself of rights of party in possession, or is sufficient to put person upon inquiry.

Delvin on Deeds, secs. 760, 762, 764, 769.

The simple, independent fact of possession is sufficient to raise presumption of interest in

occupant. He cannot be regarded as purchaser in good faith who negligently and wilfully

closes his eyes to pertinent facts indicating adverse possession, when he could, with


30/376

reasonable diligence, have informed himself of facts. Pell v. McElroy, 36 Cal. 273; 75 Cal.

131; 82 Cal. 117.

It is purchaser's duty to know who is in possession before making purchase; otherwise he

could purposely avoid any inquiry and evade rule and its consequences entirely. Scheerer v.

Cuddy, 85 Cal. 273. If he has notice of occupant's title before payment, he is not bona-fide

purchaser. Eversdon v. Mayhew, 65 Cal. 163; and burden is upon such purchaser to show hehad no notice. Wilhoit v. Lyons, 98 Cal. 409; Beattie v. Crewdson, 124 Cal. 579.

By the Court, Sanders, J.:

Kate Moore, a married woman, in her own right as owner, sued Rick De Bernardi to

recover possession of a certain parcel of land in Washoe County, situate near the western

limits of the city of Reno, which bears the name of Rick's Resort or Roadhouse, and

demanded in her complaint judgment for $150 per month as rental from the 22d day of July,

1920, until possession be delivered. The defendant answered, and by way ofFRXQWHUFODLPLQWHUSOHDGHGWKH:DVKRH&RXQW\%DQNDVDSDUW\GHIHQGDQWDQGDOOHJHGIDFWVWRVKRZ

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counterclaim interpleaded the Washoe County Bank as a party defendant, and alleged facts to

show that said bank and plaintiff hold the land in trust for his use and benefit.

Upon extended findings of facts following closely the averments of the counterclaim,

which are too lengthy to be set out, the trial court concluded as a matter of law that theconveyance of the land by the Washoe County Bank to Kate Moore, on the 22d day of July,

1920, if permitted to stand, would operate as a fraud upon the rights of the defendant; that in

virtue of an agreement, set up in the counterclaim, between the bank and the defendant, a

constructive trust had arisen in defendant's favor in the land; and that plaintiff, Kate Moore,

purchased the property from the bank with full knowledge of said agreement. Thereupon it

was adjudged, ordered, and decreed that said parties convey to the defendant the land in

controversy, free and clear from all incumbrances, upon condition that the defend

nevada reports 1922-1924 (47 nev.).pdf

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