Becker v. Anderson

6 Neb. 499 | Neb. | 1877

Lake, Ch. J.

This is an appeal from Platte county, and the question for review is whether the. petition states a good cause of action. ,

If the facts alleged be true, the mortgage falls clearly within our statute of frauds, and is void as to the plaintiffs who were the creditors of the mortgagor at the time it was executed. This, indeed,.is not questioned by defendant’s counsel, but they say that the plaintiffs are not in a situation to invoke the aid of a court of equity in their behalf. It is contended also that, under the circumstances, their remedy, whatever it may be, should be songht in the county court, where the settlement of the estate of Platte is being prosecuted.

In the examination of this question it should be borne in mind that the sale by this mortgage was void only as to the creditors of Platte. As between the immediate parties to the instrument, it was just as effectual to pass the title to the property as if executed in the utmost good faith. Chitty on Contracts 366, Marginal. It- is true that provision is made in Sec. 211, Chap. 17, Gen. Stat., 317, for the recovery of goods, so fraudulently conveyed by a deceased person in his lifetime, whenever there happens to be a deficiency of assets in the hands of the executor,. or administrator. But here the fraudulent vendee is the executor himself, who affirms the validity of the mortgage, and insists upon his right to hold and enjoy the property thereby conveyed, to the exclusion of the creditors of the estate. And he being in possession of the property under a sale, prima faoie valid, and which until adjudged fraudulent in a proper action affords to him complete protection in his claim, we fail to see how the plaintiffs can have any remedy whatever against the sureties on the executor’s bond. Therefore, where the executor is insolvent, in a case like the one now before us, the position taken by the defendant’s counsel that the jurisdiction of the county court in the settlement of the estates of decedents, “ provides most ample remedy,” is clearly not maintainable. The only certain effectual remedy is the one here adopted, by injunction, whereby the property can be held i/n statu quo, until the. transaction can be investigated, and the validity or invalidity of the -sale judicially settled.

We think that, in principle, this case falls clearly within that of Hogan v. Walker, 14 How. (U. S.), 29, and that the testimony afforded by the plaintiffs to sustain their petition ought not to have been rejected.

• The judgment of the district court is therefore reversed, and the cause remanded for a new trial.

Reversed and remanded.