61 Neb. 464 | Neb. | 1901
In an action at law the appellant, in January, 1894, obtained a judgment for over $7,000 against the appellee, Y. Bunn, upon which there was realized and credited the sum of about $2,000. Thereafter, and in February, 1895, an action in equity was begun by the appellant in the nature of a creditor’s bill, for the purpose of having declared fraudulent and void, as to it, certain transfers of property, both real and personal, made by the judgment debtor, Y. Bunn, and to subject such property to the payment of said judgment. After trial, in which all necessary parties were brought, issues joined, and the submission of a great deal of evidence, the trial court found on the issues in favor of the appellees, and a judgment was rendered in their favor,-from which the appellant appeals to this court.
The more important features of the case, in which are included the essential elements of the controversy, as disclosed by the record, appear to be as follows: The said Bunn, being the owner of considerable property and engaged in farming on an extensive scale, was, at the time of bringing the law action first mentioned, indebted to divers persons in various sums of money, including the plaintiff in that action who was the heaviest of his creditors. In the law action the appellant caused to be issued a writ of attachment on the ground of alleged fraud on the part of the defendant as to the disposition of his property, which was levied on the property of the defendant in that action, now the judgment debtor. A motion to dissolve the attachment, supported by affi
The evidence in the equity action is without serious or substantial conflict or contradiction, and the only important question arising thereon is as to the proper deductions to be made therefrom. It is practically conceded that the transfers complained of were made to secure and satisfy bona 'fide debts owing by the grantor, but it is insisted that such transfers were made for the purpose also of defrauding, delaying or hindering the appellant in the collection of its debt, in which fraudulent and unlawful purpose the grantees participated, thereby rendering such conveyances fraudulent and invalid as to the appellant under the provisions of section 17, chapter 32, Compiled Statutes, entitled “Frauds.” The section just referred to provides that conveyances of the kind xinder consideration, made with intent to hinder, delay or defraud creditors, or persons of their lawful rights, debts or demands, shall be void as against the person so hindered, delayed or defrauded. It is earnestly insisted that in the present case, under the evidence, it is shown that the preferred creditors were not acting in good faith for the sole purpose of securing their past debts, but were engaged in a preconcerted effort, in conjunction with the judgment debtor, to so cover up all his property as to keep it under his and the preferred creditors’ control, and prevent appellant from collecting its
The right of a debtor to prefer certain creditors to the exclusion of others, if done in good faith, being admitted, it is required of us only to examine into the case with a view of ascertaining whether, in the transactions entered into in'making such preference, there has been any violation of law which would invalidate the contract or agreement by which the same was accomplished. It appears that all the chattel property of the debtor was mortgaged to secure debts then existing, and that such mortgages were, in the manner provided by law, foreclosed, and the property sold to satisfy the debts for which the mortgages were given. Certain real estate was sold and transferred in payment of,, other debts then owing by the grantor. It thus appears that all of the property of the debtor, which is sought by these proceedings to be reached and applied to the satisfaction of appellant’s judgment, has actually been sold and transferred from the debtor in the payment of just obligations owing by him.
A deed of conveyance was made by the debtor to one of his creditors, in which certain other debts secured by
Some of the transfers were made to relatives of the debtor, and it is argued that the evidence does not show that the debts thus secured or satisfied were bona fide and the transfers made in good faith. From the evidence we think it fairly inferable that the debts, to secure and satisfy which the transfers were made, were actual, subsisting and just obligations, existing against the debtor, and it is not disclosed by the evidence that in the transactions by which the debts were secured or satisfied there was a want of good faith, or that the creditors were actuated by other motives or acted for other purposes than the securing of just demands owing them by the grantor. One was a son and the other a sister of the debtor. In Davis v. Schwartz, 155 U. S., 631, 638, it is said by Mr. Justice Brown in the opinion: “The fact that the assignee or the preferred creditor of an insolvent debtor is a relative or intimate friend is doubtless calculated to excite suspicion; yet in reality there is nothing unnatural in a dealer or trader who is in need of credit, or a loan of money to carry on his business, first applying to his relatives for such loans, and if the evidence be undisputed that the money was advanced, the fact that the persons making the loan are relatives ought not to debar them from receiving security. Their rights are neither increased nor diminished by the fact of relationship. Magniac v. Thomson, 7 Pet. [U. S.], 348; Prewit v. Wilson, 103 U. S. 22; Estes v. Gunter, 122 U. S. 450; Bean v. Patterson, 122 U. S. 496; Garner v. Second Nat. Bank, 151 U. S. 420, 432; Aulman v. Aulman, 71 Iowa, 124; Van Patten v. Thompson, 34 N. W. Rep. (Ia.), 763; In re Alexander, 37 Iowa, 454; Doyle v. McGuire, 38 Iowa, 410.” In Farrington
It is urged that the steps taken by the debtor to dissolve the attachment levied at the instance -of appellant in the action at law, supported, as was the case, by affidavits of other creditors afterwards given a preference by securing their debts, sustains the contention that the subsequent acts of the debtor with reference to the disposition of his property to secure other creditors is evidence warranting the conclusion that the transfers so made are fraudulent and void as to appellant. In all these proceeding's he was doing only that which is permitted by law. If no cause existed for suing out the writ of attachment, as we must assume from the order of the trial court,—and it is lawful to secure one debt to the exclusion of another, if done in good faith, as seems to be in the present instance,—then each and all of the acts performed by the debtor are consistent with each otluv and in harmony with law. In the attachment proceedings the creditors of the defendant, whose debts were afterwards secured and satisfied, could exercise no control, and were in nowise responsible for the action taken.
For the reason,s given the judgment should be affirmed, which is accordingly done.
Affirmed.