62 Neb. 805 | Neb. | 1901
This action was begun in the district court for Merrick county by this plaintiff to set aside conveyances alleged to be fraudulent, and to subject the lands conveyed to the lien of this plaintiff’s judgment. The trial court entered decree for defendants, and plaintiff has appealed.
On the 3d day of May, 1895, the plaintiff recovered a judgment in the district court for Merrick county against the defendant, Oliver S. Wolcott, for the sum of $2,292.50 and costs. The judgment was based upon a promissory note for $2,000 and interest, dated November 25, 1892. On the 23d day of November, 1892, the defendant, Oliver S. Wolcott, and Oalista Wolcott, his wife, deeded the lands in controversy, consisting of about 1,400 acres, to their four children. These deeds were executed at the same time and place. They were not recorded until the latter part of 1893, when they were recorded, one on the 20th of November and two of them on the 7th, and one on the 12th day of December. In the case of Bartlett v. Cheesbrough, 23 Nebr., 767, the son transferred to his father a stock of goods valued at $2,600, and the good faith of the transfer was challenged by the creditors of the son. The court, after mentioning some of the facts shown in the evidence as to the consideration paid by the father for the stock of goods, says: “Under these circumstances it devolved on the defendant in error clearly to establish the good faith of the transaction, and the actual existence of the several items of the alleged debt owing by the son to him. These facts we think he has failed to prove. Transactions between relatives, by reason of which such relatives derive an advantage from credit obtained from strangers, will be scrutinized very closely, and the bona tides of such transactions must be clearly established.” Plummer v. Rummel, 26 Nebr., 142; Adler & Sons Clothing Co. v. Hellman, 55 Nebr., 266.
The land constituted a tract which was, by the parties, commonly designated as the “ranch.” The defendant,
Q. Did the three boys buy this land?
A. Not in particular.
Q. Did you in general?
A. In some cases and in some instances, what belonged to one, belonged to all.
The father and his family lived on this land for about twelve years, commencing in 1880. During that time all the business was done in the name of the father; the title to all of the land was taken in his name; notes and mortgages were given by him to secure the purchase price. These notes and mortgages were paid, generally, out of the proceeds of the farm. The father had a bank account, and the stock was bought and sold by the father, and the
It is suggested that the deeds were executed before the indebtedness was incurred, and that the grantees were in actual possession of the land conveyed, so that this creditor had notice of the conveyances before he extended the credit. But we do not think that these are controlling facts in this case. In Steele v. Coon, 27 Nebr., 586, it is-said: “A deed not fraudulent at first, may become so afterwards by being concealed, or not pursued, by which means creditors have been drawn in to lend their money.” The fact that the debt was contracted after the conveyance was made is no defense where the conveyance was made with a view to incur the indebtedness and avoid its payment. Echols v. Orr, 106 Ala., 237; Marks v. Crow, 14 Ore., 382. When a grantor intends by voluntary conveyance to hinder and delay subsequent creditors the conveyance will be void as against creditors without showing actual notice of such intent to the grantee. Preston v. Cutter, 64 N. H., 461. Where, the grantor is insolvent at the time of making the conveyance, want of consideration is a controlling fact on the question of fraud. Erickson v. Quinn, 47 N. Y., 410. Prior to the giving of the note, on which the judgment was obtained, one Heffner came from Nevada, Missouri, to sell Mr. Wolcott, the father, some horses, and was taken by him out to the ranch and shown over the ranch. There is some testimony that something was said in his presence to the effect that the boys wanted to sell the farm, but nothing to the effect that they owned it or claimed to own it, or had any further interest in selling or holding it than they had in the other business which was transacted there, all of which appeared to belong to the father. It also appears that on the day that the deeds in question were made the father went away from home,
It is recommended that the decree of the district court be reversed and the cause remanded Avith instructions to enter a decree as prayed in plaintiff’s petition.
For the reasons stated in the foregoing opinion the decree of the district court is reversed and the cause is remanded with instructions to enter a decree as prayed in plaintiff’s petition.
Reversed.