18 Neb. 474 | Neb. | 1885
The decree of divorce was affirmed in Aildns v. Atkins, 13 Neb., 271, but the alimony reduced from $5,600 to $3,000, and the allowance for attorneys’ fees and expenses from $2,000 to $1,000. The alimony thus allowed, it seems, was not paid, and the decree not being a lien upon the lands of Henry Atkins the plaintiff was unable to collect the same. In 1883 the legislature passed “ An act to provide additional remedies for enforcement and collection of judgments and orders for alimony or maintenance.” Comp. Stat., Ch. 25, §§ 4a, b.
An execution was thereupon issued on the decree, and levied upon certain real estate as the'property of Henry Atkins, but the legal title to which was in Martha L Courtnay. The plaintiff thereupon filed a creditor’s bill to have the conveyance of said real estate to Mrs. Court-nay declared fraudulent and void as against the plaintiff’s rights. The court below found the issues in favor of the plaintiff, and rendered a decree accordingly.
Three questions are presented by the record: First. Has the plaintiff any dower interest in the lands in controversy ? Second. Where a conveyance is made while an action is pending, the effect of which will be to defeat the-judgment, on whom is the burden of proof of a valuable-consideration ? And, Third. May the plaintiff avail herself of a remedy created by statute after a decree in her favor t
Sec. 20 of chapter 23 of the Comp. St. provides that, “A woman being an alien shall not on that account be barred of her dower; and any woman residing out of the state-shall be entitled to dower of the lands of her deceased husband lying in this state, of which her husband died seized;• "and the .same may be assigned to her or recovered by her-in like manner as if she and her deceased husband had been residents within this state at the time of his death.”
It will be seen that any woman residing out of the state is entitled to dower only in such lands of her deceased husband lying in this state as he was seized of at the time of' his death. This section of the statute seems to have been copied from the statute of Michigan on that subject, the language being the same. The proper construction of the section was before the supreme court of that state in Ligare
Second. The testimony shows that Martha I. Courtnay is the daughter of the plaintiff’ and Henry Atkins; that the property in question is all the property in this State, so far as is known, possessed by Henry Atkins, and the effect of the transfer is to defeat the plaintiff’s decree for •■alimony.
Sec. 17, Chap. 32, Comp. Stat., declares every conveyance or assignment “ made with the intent to hinder, delay, or defraud creditors or persons of their lawful rights, ■damages, forfeitures, debts, or demands,” etc., void. Rights ■of alimony certainly are included in this provision. Morrison v. Morrison, 49 N. H., 69. Chase v. Chase, 105 Mass., 385. Dawson v. Damon, 28 Wis., 512. Draper v. Draper, 68 Ill., 19. Turner v. Turner, 44 Ala., 437. A transfer made while a suit is pending of all the debtor’s property is merely a badge of fraud. It may be shown to ■be valid because the mere pendency” of the suit does not make the transfer void. Bump Fraud. Conv. (3d Ed.), 37, 38. But where all the debtor’s property is conveyed with the apparent intention on the part of the grantor to defeat a judgment about to be recovered against him, and these facts are known to the grantee, the. burden of proof rests upon her to show a valuable consideration. Baxter v. Septimus, 3 Md., 334. Spindler v. Atkinson, 3 Id., 409. Hunter v. Waite, 3 Gratt., 26. Crossley v. Elworthy, L. R., 12 Eq., 158. Wilson v. Buchanan, 7 Gratt., 334. Woolston’s Appeal, 51 Penn. St., 452. Crumbaugh v. Kugler, 2 O. S., 373. Reynolds v. Lansford, 16 Tex., 286. Raymond v.
Third. Remedies for the collection of judgments are largely within the control of the legislature, and if no vested right is destroyed such acts are valid. It will not be seriously contended that one holding property of a debtor as voluntary donee has any vested right to hold the same as against one holding a valid claim against the donor at the time the donation was made. The property in such case, to the extent of the creditor’s claim against the debtor, is liable for the satisfaction of the same, and the legislature by providing a mode for subjecting property to the payment of the judgment merely provides for the more perfect administration of justice by the application of the property.
It is well settled that where an equitable right exists in favor of creditors, the legislature has the right to create a legal remedy in their favor. Lewis v. McElvain, 16 Ohio, 355. Bolton v. Johns, 5 Penn. St., 149. Henderson v. Dickerson, 17 B. Mon., 173. Sempeyac v. U. S., 7 Pet., 222. The act in question, therefore, is valid, and the proceedings under it legal. It follows that the judgment of the court below must be affirmed.
Judgment affirmed.