42 Neb. 177 | Neb. | 1894
This was an action in the nature of a creditor’s bill by Brownell & Co., who had a judgment against Elijah Stoddard, seeking to subject to .the payment of that judgment certain land in Douglas county, which it was alleged had been conveyed by Stoddard through a third person to Stoddard’s wife in fraud of creditors. The Wood River Bank intervened, setting up a judgment in its favor against Stoddard and seeking the same relief. Stoddard and his wife, Mary D. Stoddard, were the defendants. The defendants answered jointly, denying the allegations of fraud and alleging that the conveyances were made for a valuable
Q,. State when the land was originally purchased by your husband, Mr. Stoddard, whether you furnished any of the original purchase money.
A. I did.
Q. How much of it did you furnish?
A. $1,000.
Q. And do you remember what the original cost of it was ?
A. I think it was about $4,000.
Q,. And this $1,000 that you put into the original purchase price, you may state from what that money came.
A. From the sale of a house that I owned in North Brookville, Massachusetts.
Cross-examination by Mr. Adams:
Q. Mrs. Stoddard, when were you- married ?
A. I was married in 1868.
Q,. When did you move to Omaha?
A. I think it was in 1870.
Q,. How long before this land was purchased?
A. After we came.
Q. How long did you live here before it was purchased?
A. About two years, I think.
Q. This $1,000, did you have it when you first came out here, or was it sent to you?
A. Sent to me.
Q,. How long was it sent to you before the land was purchased ?
A. It was sent about the time the land was purchased.
Q,. At the time ?
A. Yes, sir; first payment.
Q,. In what form did it come ?■
A. I do not think I remember.
*182 Q. When it arrived did you receive it? Did you have it in your possession?
A. I don’t remember whether I did or not.
Q,. To whom was the money paid ? Do you know ?
A. To the party the place was purchased from, Mr. Mason.
Q,. Paid by your husband to Mr. Mason ?
A. Probably.
Q. You don’t know?
A. I don’t remember.
Q. Your husband never gave you any note to represent this?
A. No, sir.
We are very clearly of the opinion that an error was committed in allowing this sum of $1,000, with interest, as a lien upon the land. It will be observed that in this evidence it-does not appear that any evidence of indebtedness was taken; that it was not claimed that even a parol agreement existed whereby Mrs. Stoddard was to have a lien for the amount advanced. If A lend B $1,000, we do not understand that he acquires a specific lien on the land which B purchases with the money so borrowed merely because the money was so used. But the evidence also fails to establish a loan. Mrs. Stoddard says she “furnished” a portion of the purchase money. This word “furnished” is the only word used either by her or her counsel in describing the transaction. It is not pretended that there was any agreement for repayment, much less any lien by contract upon the land. It would seem that if Mrs. Stoddard be entitled to any relief ón account of this item, it would be upon the theory that a trust resulted to her to the extent of a quarter interest in the land, it appearing that the whole purchase price was $4,000. In such event the decree would, under the evidence as to value, be without prejudice to appellants. Can a resulting trust be established on such evidence? We think not. The doctrine of
Decree accordingly.