Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1897-02-09
FRAUD NOT PROVEN.
SCpTemc Court RsYtrSeS Decision OIL
Lower Court.
JUDGMENT OF NoN.suu ORDERED.
The Crescent VS. silver King Wants Il
Rcctiysr AppOiuted-0lhtr
C0ur. Items.

The Supreme court handel down a
decision today in the case OF Martin
Ensign Jr. VS. George w. Fisher,
Mary f, Fisher and Lille Bland, set.
ting aside the judgment of the lower
court, also with Instructions to grant a
Judgment OF non-suit in conformity
with motion made by the appellant.
The plaintiff in this case recovered r
judgment sgainst Geo. w. Fisher in
the First district court, Box Elder
county, on the 26th OF February, 1895,
for $3.50. 43, together with cost OF suit.
In March an execution was Issued to
the sheriff OF Box Elder county ami
later returned wholly unsatisfei. The
plaintiff then filed another complaint
alleging an intent to defraud creditors
on the part OF Fisher aud his vile, by
conveying to their daughter Lille
Bland, deed to certain land In Brig
ham City survey, ana asked that the
conveyance be set aside as fraudulent.
The Defendant answered denying
the allegations in toto.
Hart, the plaiatff Introducing testi-
muny to show that Ia Dscemb or, 1894,
Mrs. Fisher offered to sell the properly
in question. Tho deed to Lille Blanu
wan offered 10 evidence anu recel we'd,
as also was a judgment against + isher
for 500, rendered in March, 1894,
showing the judgment to have been
July paid ana satisfied. The record to
the former judgment Obtained by
plsiDtiH against Fisher was aleo intro
duceG. alter which plaintiff rested.
The Defendant then moved for a
judgment OF noB-suit, on the ground
that no evidence had been introduced
tending to show that the deed bad been
executed without a valuable consider
atiun, and thsE no material allegation
OF the com plant had been ests blisheu.
The court denied the motluu, the
defendant taking an exception, assign-
ing as error the refusal OF the court to
grant the n0n-Huit.
The opinion OF the court as handed
down touay, concludes as follows:
The testimony offered was exceed.
ingIy meager and unsatisfactory. In
order to establish prima iacia case as
charged, the plaintiff should have
SHOWN that the Conveyance OF April
%, 1894 was without consideration
and fraudulent, or that the deed was
maue in contemplation OF insolvency,
and that Fisher was insolvent at tine
time the deed was made and after
wards. No testimony wns offered in
plsintiff's affirmative case upon these
subjects. the testimony that Fisher
anu his wife had Gfierel to sell The
property In the absence of Lille
Bland, during the year 1894
or 1896, taken in connectiou
with toe fact that Mr.. Coombs
was Lille Blanu's agent, ami
assisted in making the alleged Dego-
| tlatlons for the sale, is not OF itself
suffi cient to establish the charge made
in the complaint.
The fact that Fisher offered to sell
the property would not chow that
Lille Bland had not purehaPej the
same in good faith, and Tor valuable
consideration. Fraud whsD charged
must be PROVED; 1t cannot be presumed
without proof. No judgme existed
against Fisher at the time OF the cOn-
vpyance. The fact tina; suit had been
commenced against HIM in Just cu's
court before the conveyance might be-
suspicious but that fact alone should
not be hell sufficient evidence OF
fraud to Hnnul u deed subsequently
made without some PROOF tehdiI 10
show the fraudulent nature OF The
transfer.
The offer of evidence after the mo.
ton for u non-suit was everfuled ia
not a waiver OF the exception taken
to the order overruling such motion,
under session laws OF Utsh 1894, page
AZ. Testimony was Afterwards intro.
| uuced by both parties.
Upon an examination OF the tebti.
mory we are not satisfied that 1t
supports tbs findings Of the court.
the judgment Of the lower court
below ~ set aside with instruction to
grant u judgment OF non.suit az re-
quested by this appellant. BY the
| court. ZANE, q. j.
BARICH j,