17 Neb. 335 | Neb. | 1885
This is an action to foreclose a mortgage executed by-Jacob S. Brillhart to Andrew J. Brillhart on the 28th of April, 1877, upon certain real estate, to secure the payment of eight promissory notes of $200 each, with interest at eight per cent. George A. Brillhart was permitted to-intervene, and filed an answer wherein he alleges that in January, 1884, he commenced an action by attachment against Jacob S. Brillhart to recover the sum of $2,426.20 and interest, and that the attachment was levied upon the mortgaged premises; that the mortgage in question was given without consideration, and for the purpose of defrauding the intervener. On the trial of the cause the court found that the lien of the attachment was superior to that of the mortgage and rendered a decree accordingly. The plaintiff appeals. The testimony fails to show that the plaintiff is a bona fide purchaser of the notes in question, and therefore he possesses no greater rights therein than the payee of the notes. Where there are fraudulent transfers, of property to prevent the collection of debts, it is the-duty of the court to ascertain the date and manner of the creation of the several debts in order to determine whether the transfers were made before or after the debts were incurred, or with a view to the creation of the debts.
It appears from the record that the mortgagee is a son of the mortgagor, and is of weak mental capacity; that in
Decree accordingly.