74 Neb. 723 | Neb. | 1905
The plaintiff and appellant, who is receiver of the State Bank of Milligan, Fillmore county, Nebraska, brought this action against the defendants and appellees to subject certain lands in Dodge county, Nebraska, to the payment of a judgment obtained by him against Joseph Roubal, the record title of which stands in the name of Josephine Roubal, wife of said Joseph. For a clear understanding
In November, 1897, the plaintiff recovered judgment against Joseph Roubal in the stun of $4,700 in the district court for Fillmore county upon the bond of one Fiala, oh which Roubal was surety. November 24, 1897, Joseph Roubal and wife executed a deed to James Vech, a brother-in-law, conveying to him the land in controversy in this action. November 27, 1897, the plaintiff filed a transcript of his judgment obtained in Fillmore county in the office of the clerk of the district court for Dodge county. December 9, 1897, James Vech and wife deeded the property to Louis J. Kudrna. December 10, 1897, the plaintiff caused execution to be issued on his judgment and delivered to the sheriff of Dodge county,- and on the following day the sheriff levied on the real estate in controversy, and caused the same to be advertised for sale as the property of Joseph Roubal, who had during all the time remained in possession of the premises. January 21, 1898, and previous to a sale being made under the execution, Kudrna obtained an injunction from the district court for Dodge county, restraining the sheriff from proceeding to a sale under his execution. The plaintiff applied to the court to be made a party to this action, and filed an answer and cross-bill in that case, bringing in other defendants. His cross-petition was in the nature of a creditors’ bill, seeking to subject the land to the payment of his judgment. April 21, 1900,'a decree was entered in said action, setting aside the different transfers, and declaring the real estate t,o be the property of Joseph Roubal, and ordering it sold, subject to his homestead interest. The defendants in that action filed a supersedeas and took an appeal to this court. In the meantime the law action in which plaintiff’s judgment had been obtained in Fillmore county was appealed to this court by the defendant Roubal, and on November 20, 1901, an opinion was filed, reversing said judgment and remanding the case for another trial. See Fiala v. Ainsworth, 63 Neb. 1 March 21, 1902, a second trial of
We have carefully examined the evidence contained in the record, and have arrived at the conclusion that there can be no doubt that the conveyance made by Joseph Roubal to James Vech, and the several deeds thereafter made, wore for the purpose of avoiding the indebtedness due from Joseph Roubal, the plaintiff, and finally vesting title to the property fn Josephine Roubal, his wife. It is unnecessary to discuss this evidence, as even a casual reading will satisfy the mind of any disinterested party that the conveyances, aside from the mortgages mentioned which will be considered later, were colorable only, and without any good faith consideration paid. This brings us to the consideration of the statute of limitations relied on by the defendants and sustained by the district court. That court evidently relied on, and felt bound by, the holding in Gillespie v. Cooper, 36 Neb. 775; and, if that
“Were the appellees limited to a creditors’ Mil in order to obtain relief from this fraudulent conveyance? We think not. Appellees could have attached the property on the ground that it was fraudulently conveyed to Richards for the purpose of delaying Mrs. Cooper’s creditors. Code, sec. 198, subd. 8; Keene v. Sallenbach, 15 Neb. 200; Brown v. Brown, 91 Ky. 639, 11 S. W. 4; Rogers v. Brown, 61 Mo. 187. For this court to hold that appellees’ cause of action did not accrpe — the fraud discovered — until appellees were in a position to file a creditors’ bill would be to judicially amend this statute and leave it to the discretion of creditors to fix the time of the accrual of their cause of action by hastening or delaying the recovery of judgment. A case might arise where, by reason of the debtor being a nonresident, a personal judgment could not be obtained. In such case would appellee have no cause of action for relief on the ground of fraud until the debtor became a resident and a personal judgment was entered against him? It is an old maxim that for every wrong the law affords a remedy, but if one effectual remedy is afforded by the law the maxim is complied with.”
It is true that an extraordinary remedy is offered for the relief of creditors where the debtor is seeking to defraud them. An attachment may be had in such a case, whether the creditor’s claim be due or not, but Ave might here remark that the general rule appears to be that the extraordinary remedy afforded the creditor by an attachment. does nothing more than give him a lien upon the property attached, and does not entitle him to a judgment until his debt has matured. In this state the
Again, it is undisputed law that a creditor who has two remedies offered him may elect which remedy he will pursue, and it is no objection that one remedy is barred by the statute, provided the remedy which he elects is not barred. Lamb v. Clark, 5 Pick. (Mass.) 193. In Shipp v. Davis, 78 Ga. 201, it is said:
“Where the creditor had an election between two rights of action for the same debt, he may, after one of them is barred, maintain a suit on the one not barred.”
Let us see what Avould be the practicable result of the rule announced in Gillespie v. Cooper, supra. A, having a cause of action against B upon a note, might, upon learning that B had fraudulently transferred his property/ commence an action in attachment, AAhether the note had matured or Avas not yet due. C, having‘a cause, of action against B for a tort committed, could not obtain an attachment, his demand not being liquidated. As against A, therefore, the statute of limitation would run from the discovery of the fraud. As against G, the cause of action Avould commence to run only from the time of reducing his claim to judgment, or, if it should be held that it did commence to run, Ave would have the anomaly of the statute running against a claim upon which a right of action had not accrued to the plaintiff. Thé principle for which we are contending is well expressed by the supreme court of South Carolina in Suber v. Chandler, 18 S. Car. 526, in the follOAving language:
“This principle, unless authority beyond question the other way can be found, ought to control in a case like this. It is claimed that these principles cannot apply in the face of the positive decision in this state that the*729 statute commences at the discovery of the fraud.- This doctrine is not denied, but it must be taken in connection with that other principle, also held in this state, that to give currency to the statute there must be a plaintiff who can sue and a defendant who can be sued. Bugg v. Summer, 1 McMul. *333. The discovery of the fraud by a party who cannot sue on account of it amounts to no discovery. These are cases where an action can be commenced the moment the fraud is discovered, and to such cases this doctrine is properly applicable, but in those cases where this discovery gives no right of action at the time, the reason of its application entirely fails.”
We apprehend, also, that the reasoning in Gillespie v. Cooper, supra, is unsound in its statement that fraud is the cause of action for which an attachment may be issued. In our view, the fraud of the debtor is not the cause of action. The cause of action is the debt due from the defendant to the plaintiff. That the defendant has fraudulently conveyed his property does not give the plaintiff a cause of action of which he is not already possessed. It merely gives him the right to sue on an unmatured claim, if his debt has not matured, and to have the assistance of a writ of attachment because of the defendant’s fraudulent act. The cause of action is still the note or contract, the debt upon -which the defendant is liable. The defendant’s fraudulent acts merely give the plaintiff a remedy for securing his demand. As before remarked, it -is true that the plaintiff, because of the fraud of the defendant, may have the assistance of a writ of attachment to secure his claim before judgment, but this right is given him as a security only, and not as a new cause of action, nor can it be used by one not having a cause of action in aid of which it may be invoked. After judgment at law, the creditor may pursue the following remedies: If he has not attached, he may file his creditors’ bill against the fraudulent vendee of his debtor’s estate. If he has attached the estate fraudulently conveyed, he may, if he elects so to do, sell the attached property and,
There are other reasons which appeal to the legal mind for refusing our assent to the doctrine of Gillespie v. Cooper, supra. As before stated, the creditor who has two remedies may pursue whichever remedy he may elect, and he is certainly entitled to pursue the ordinary and usual remedy afforded him by the laws of the state, and is not called upon to adopt the extraordinary and hazardous remedy of attaching his debtor’s property, unless he believes it for his best interest so to do in order to gain a preference over other creditors. So, also, is he entitled, if he so desires, to pursue a remedy that gives him the right to try the question of fraud on issue duly made by the pleadings, and to cross-examine the witnesses of his adversary; in other words, to have the benefit of a formal trial to the court on the issue made, which is denied him
The defendants also relied upon the case of State v. Osborn, 143 Ind. 671, in which the following was held: “That judgment against a debtor was not rendered until after the expiration of the six years within which a conveyance by the debtor, fraudulent as to his creditors, could be attacked, due to the fact that the debtor persistently fought the action, does not entitle the creditor to sue to set aside such conveyance after the expiration of such time.” (42 N. E. 921.) We do not think that this head-note fairly reflects the reasoning of the court. A careful.reading of the opinion discloses that judgment was obtained against the defendant long prior to the expiration of the six years limited by statute for commencing an action upon the ground of fraud. The de
Coming now to the mortgage liens upon the land, it is shown that the-mortgage executed to Dolezal Avas for services rendered in the various suits growing out of this transaction and expenses incurred therein. We incline to the belief that the amount of his mortgage is not excessive for the services performed, and that he is entitled to a
We recommend, therefore, that the decree of the district court be reversed, and that a decree be entered subjecting the land in dispute, after setting aside the homestead interest of Joseph Roubal and Avife, to the payment of the plaintiff’s judment, after first satisfying the mortgage of the defendant Dolezal, and that the cause be remanded to the district court for that purpose.
By the Court: For the reasons stated in the foregoing opinion, the decree of the district court is reversed, and the cause remanded to the district court, with directions
Reversed.