Peabody v. Hutton

ON PETITION FOR • REHEARING.

Plaintiff in error still contends that the judgment against. George L. Hutton, to satisfy -which he seeks to subject the property in controversy to sale upon execution, is -a judgment against George L. Hutton as administrator of the estate of Rowena H. Hutton, deceased. Also that the order of the probate court transferring this property to George L. Hutton, upon his executing a bond to pay the debts of the estáte; is void. If this'all be true- it results that there has been no administration of the estate, and no ascertainment' of its assets and liabilities. It does -not entitle plaintiff in error to have thé property in controversy, or any portion.of it, applied to the discharge' of his claim,' in whole or in 'part* except in due course of administration.

" Rehearing denied.

This action was brought in the district court by plaintiff in error against defendants in error, to annul a conveyance through a trustee of realty from the defendant in error, George L. Hutton, to the defendant in error, Elizabeth Ann Hutton, his .wife; and to subject the realty so conveyed to sale upon execution to satisfy a former .judgment against George L. Hutton.

Much of the argument on behalf of plaintiff in error has been an effort to make it appear that such judgment is a judgment against George L. Hutton as administrator of the estate of Rowena' H. Hutton; that is, against the estate;- and that the conveyance of the realty in question should be set-aside in order to subject it to sale'on such judgment as a judgment against the estate of Rowena S. Hutton. The judgment is in the following words:

“It is therefore .ordered and adjudged that the plaintiff,, “Alfred S. Peabody, have and recover .of and from the defendant, George L. Hutton, the aforesaid sum of six hundred “and twenty-five and 67-100 dollars, together with his costs “in this action, taxed at thirteien dollars.”

' The district court finds that this is a personal judgment against George L. Hutton. This finding is clearly right. It is not a judgment against the estate of Rowena H. Hutton.

The sole remaining question is, has plaintiff in error shown error in the refusal of the district court to annul the conveyance of the realty in question and order it sold to satisfy the judgment against George L. Hutton?

The property consists of two lots in the town of Laramie with improvements. There -is no evidence in the record and *106no finding of the court as to their values. It is alleged in the answer of defendants in error, and denied in the reply of plaintiff in error, that ever since the death of RowenaH. Hutton the premises in question have béen occupied as a homestead by defendants in error, George L. Hutton and Elizabeth. Ann Hutton, and their children'. There is no.-evidence in the record and no finding of the court upon this point. It is alleged in the petition of plaintiff in error, and denied by the answer of defendants in error, that the conveyance attacked was.made .with intent ,on the part of defendants in error to hinder, delay and defraud the creditors of George L. Hutton. The .district court finds that there was no such intent. The record does not purport to give all of -the evidence upon these points.. For lack of evidence we can not review this finding of the district' court or its judgment. = •'

Judgment affirmed. •