59 Neb. 244 | Neb. | 1899
This action, in substance a creditors’ bill, was brought by Philip Dunn against the defendants in error to annul a conveyance alleged to be fraudulent as to creditors, and to subject the property conveyed to the lien of plaintiff’s judgment against John C. Bozarth. The district court found generally in favor of the defendants, and rendered a decree dismissing the petition. Among the errors assigned are some relating to questions of practice, which have been so frequently decided that we think it sufficient to say here that they have been considered, and overruled.
The events in which this litigation had its origin may be sketched as follows: The Bozarths, who are husband and wife, formerly lived'in Illinois. In 1878 Mrs. Bozarth received from her father’s estate $3,000, which was turned over to her husband, and mixed with his funds. In 1883 they removed to Nebraska, and settled in Gage county. The same year the land, which is the subject of this suit, was bought by Bozarth and W. H. Tichnor. The title was taken in the name of the purchasers, but there was at the time an arrangement to the effect that Mrs. Bozarth, who protested against the investment, should be paid, from the .proceeds of a resale, the money previously advanced to her husband, or else be given a deed to the property. In 1885 Mrs. Bozarth received $1,000 from the estate of a deceased brother, and in 1890 she received $4,500 from the sale of a farm in Illinois. Both of these sums were turned over to Mr. Bozarth, and used by him in his business. In July, 1893, Tichnor con
• On the trial of the issues raised by the pleadings there was a demurrer to plaintiff’s evidence, on the ground that it was insufficient to warrant a decree in his favor. The court overruled the demurrer, and then, over objection, permitted the defendants to introduce their proofs. This ruling is the subject of complaint, but we do not hesitate to approve it. If it be doubtful whether the plaintiff is, on his own showing, entitled to succeed in the action, we see no good reason why the defendant may not, without risking a forfeiture, submit the question to the court before presenting his defense. The practice of challenging, by demurrer, the legal efficiency of the plaintiff’s evidence tends to shorten trials, and to avoid unnecessary expense. In the interest of the public, as well as of the litigants, it ought to be encouraged rather than repressed. See 2 Thompson, Trials, sec. 2270.
During the progress of the trial the defendants asked leave to amend their answers to show “that monies arising from the separate estate of Harriet Bozarth, subsequent to the purchase of the land, was used by John C. Bozarth, her co-defendant and husband, and that it was repaid in the transfer of the property in controversy to
The finding in favor of the defendants on the merits is, we think, supported by sufficient evidence. The testimony clearly establishes the fact that Bozarth was indebted to his wife, and the conclusion is justified that the debt was satisfied by the transfer to her of the land in controversy. In other words, the court was warranted in finding that the transaction was a sale, and not a gift. This being so, the conveyance was valid as against Bozarth’s creditors, unless the parties intended thereby to hinder, delay or defraud such creditors in the collection of their claims. There was direct and positive evidence that there was no such purpose. Some circumstances, it is true, tend to show that Bozarth was endeavoring to place his property beyond the reach of Dunn’s judgment, but there is no very cogent proof that Mrs. Bozarth participated in, or knew of, her husband’s design. There was ample ground for the conclusion that she received the property with the honest purpose of protecting herself. A wife may enforce her just claims against her husband on the same terms as other creditors. She must, of course, show affirmatively the genuineness of the debt due to her and the good faith of the transaction by which payment is obtained; but that being done, her rights are
A further contention of the' plaintiff is that Mrs. Bozarth is estopped from asserting her claim, because her husband obtained credit on the faith of .his ownership of the.land. To this argument two answers may be made: First, Bozarth was the legal and equitable owner of the property, and we assume that the trial court so found; second, the evidence shows conclusively that Dunn never extended credit to Bozarth on any basis. The judgment is right, and is
Affirmed.