FRAUDULENT CONVEYANCES — Pleading — Variance. In an action to set aside a deed, and to have a certain judgment declared a lien on the property described in such deed, the action being based upon a judgment alleged to have been rendered in a certain court, on a certain day, against certain parties, for a specific amount, and to prove such judgment the plaintiff introduces a judgment rendered in a different court for a different amount, and against different parties, held, such variance between the allegations and proof in the absence of amendment is fatal. And, in the absence of any evidence that the judgment introduced had been recorded or docketed so as to become a subsisting lien, it was not necessary for the trial court to decide whether the deed should be set aside or not.
(Syllabus by Harrison, C.)
Opinion by HARRISON, C.
In June, 1908, Wm. Lockoby brought suit in the district court of Grady county against S. B. Cook and S. V. Cook, wherein it was sought to set aside a deed to a tract of land from E. H. Peery and wife to Miss S. V. Cook, and to have the title to said tract of land declared to be in S. B. Cook, and to have a certain judgment decreed to be a lien on said tract. Plaintiff alleged that on November 10, 1903, Edson-Keith Co., of Chicago, caused an execution to be issued and levied upon the property of S. B. Cook in satisfaction of a judgment theretofore obtained by Edson-Keith Co. against S. B. Cook. That S. B. Cook obtained an order of injunction restraining the United States Marshal from proceeding under said execution; that in said injunction proceeding said S. B. Cook gave an injunction bond with W. C. Pimm and H. C. McKay as sureties; that thereafter, upon a hearing, said injunction was dissolved and judgment rendered against S. B. Cook as principal and W. C. Pimm and H. C. McKay as sureties on said bond for the sum of $585.28 and interest and costs; that thereafter an appeal was taken from said judgment on said injunction bond to the Court of Appeals of the Southern District for the Indian Territory at South McAlester, wherein the judgment of the lower court was affirmed; that thereafter the said W. C. Pimm and H. C. McKay, as sureties on said injunction bond, paid said Edson-Keith Co. more than $500 on said judgment, with the understanding and agreement that such judgment should be kept alive for the use and benefit of said W. C. Pimm and H. C. McKay against said S. B. Cook, and that thereafter they caused said judgment to be assigned and transferred by Alexander B. Adams, the surviving partner of Edson-Keith Co., to Wm. Lockoby, plaintiff herein, with authority to bring suit for the use and benefit of said W. C. Pimm and H. C. McKay. It is also alleged that plaintiff caused execution to be issued on said judgment in the name of Edson-Keith Co, against S. B. Cook, and that the officer's return on said execution showed no property found; that at the time of bringing this suit said judgment together with interest and costs amounted to $735.50.
Plaintiff further alleged that the title to the tract of land herein referred to was in S. B. Cook, instead of S. V. Cook; that S. B. Cook had furnished the money with which to pay for said tract and had same deeded to his sister, S. V. Cook, for no consideration except to defraud his said judgment creditors. Wherefore, they ask that said deed be canceled and set aside, and that said judgment on said injunction bond be declared a lien on said property. Issues being joined by the pleadings, the cause was tried in June, 1910, and judgment rendered in favor of defendants. From such judgment, plaintiff brings the case here.
Numerous errors are assigned as grounds for reversal. Most of which, however, bear upon the deed which plaintiff sought to set aside and the rulings of the court in reference thereto. But it could serve no purpose to decide these questions, unless the basis of plaintiff's action, the judgment which he pleads and predicates his action upon, is supported by the evidence. The gist of his cause of action is that he had a certain judgment against S. B. Cook, by reason of which judgment he asked that the deed to S. V. Cook be set aside, the title to the land be decreed in S. B. Cook and the judgment declared a lien on said land. He introduced in evidence a journal entry of a certain judgment. Now, if the judgment introduced in evidence had been the judgment alleged in the petition, then a number of material questions arise for determination before the court would be justified in setting the conveyance aside and declaring the judgment a lien upon the property, viz.: First, Whether it was such a judgment against defendant S. B. Cook as under the law constituted a lien on his property. Second. Whether it had been so recorded or docketed as by law it became a lien upon such property. Third. Whether during the lapse of intervening years it had become necessary to revive such judgment, and, if so, whether it had been revived as required by law in order to keep alive such lien. Fourth. If it was such a judgment as constituted a valid and subsisting lien, then was it such a judgment as under the law could be assigned, and, if so, could the surviving partner assign the interest and estate of deceased partners in said judgment, and was such assignment valid. These questions were raised by defendants, and would have demanded a determination before reaching the question of fraud in the deed providing it had been proved by the evidence that plaintiff had the judgment upon which he predicated his action. But a determination of these questions, as well as the question of fraud in the deed, was wholly unnecessary until plaintiff proved his judgment. The judgment pleaded was a judgment entered against Cook, Pimm, and McKay by the United States Court for the Southern District for the Indian Territory for $585.28, interest and cost. The judgment introduced was a judgment of the Court of Appeals against Cook, McKay, and Pimm and the United States Fidelity Guaranty Company for $369.58, without any proof that such judgment had ever been docketed or entered on the journal so as to make it a lien against the property of S. B. Cook, and without any proof that the judgment introduced had ever been assigned to the plaintiff in this action.
Hence, in the absence of any evidence showing that the judgment introduced constituted such a lien against defendant's property, and in the absence of any competent evidence that plaintiff had such a judgment as he based his action upon, we must hold that plaintiff failed to prove his case, and that the judgment of the lower court should be affirmed.
By the Court: It is so ordered.
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