64 Neb. 292 | Neb. | 1902
This is a creditors’ bill to subject to the payment of certain judgments held by the plaintiff the west half of the northwest quarter of section 26, and the east half of the northeast quarter of section 27, township 12, range 9 east of the 6th P. M. as the property of the defendant, Thomas Reece. Thomas Reece and his wife moved onto the land in 1884, the wife holding title. In the year 1890 she conveyed the land to one of her sons, and he, in turn, conveyed it to his father, Thomas Reece. Whthe the record is not clear that this conveyance to the son was for the purpose of placing the title in the name of his father, we infer that such was the case, and that the son never had any
We think the evidence was amply sufficient to uphold the finding of the district court that the defendant, Thomas Reece, was insolvent, and that the conveyance made to his son Philip was fraudulent as to creditors. It. would serve no useful purpose to review at length the evidence on these questions. Suffice to say that the debts due the plaintiff were long past due, and the defendant could not pay them in the usual course of business, as they matured. Judgments were entered thereon and the sheriff’s return made on the executions issued show that he could find no property of Thomas Reece out of which to satisfy the judgments, save this farm, the legal title to which stood in the name of Philip Reece. No further or greater proof of insolvency was required. The bona fides of the conveyance to Philip,-if submitted as an original proposition to this court, would, we think, have to be determined against the defendants. The deed was made to Philip whthe he was in Montana and the evidence that any negotiations took place between the parties by correspondence is not of a satisfactory character. No money was paid on the consideration going to the father. Two hundred and eight
Relating to the homestead claim of the defendants, it is the settled law of this state that creditors can not complain of the transfer of exempt property by their debtor; and in Stubendorf & Co. v. Hoffman, 23 Nebr., 360, it was held that a fraudulent grantor of premises occupied as a homestead might assert his homestead exe'mption, if the court should find against the bona fides of the conveyance; and in Horton v. Kelly, 40 Minn., 193, it was held that “where a conveyance is set aside as fraudulent as to the creditors, the homestead interest of the grantor will be protected as if it had not been made.” This requires us.to consider whether Thomas Reece had a homestead right in the premises at the time of the conveyance to his son. Up to the date of the death of his wife, there can be no doubt that the farm was his homestead. He had occupied it as such from 1884. The removal to the farm of his son in 1890 to give his sick wife the benefit of a better house can not in any sense be considered an abandonment of the homestead. The cases in this state establish the rule that, once a homestead, that character continues to attach to the property until the contrary is shown, and the burden is on those who seek to show an abandonment. Union Stock Yards Nat. Bank v. Smout, 62 Nebr., 227. No act of the defendant himself, so far as the record discloses, can be pointed out that goes to impeach his right of homestead in the
It is argued with great earnestness that no provision is made for the continuance of the homestead right in the survivor where he is the owner of the fee, and ceases to be the head of a family, and that in such cases the homestead is liable for debts contracted prior to the decease of his wife. We can not agree with this contention. If we strike from section 17 so much as relates to the right of the owner of the fee to dispose of it by will, subject to the life estate created for the survivor, and providing for the succession of the remainder in the absence of a will, it reads as follows: “If the homestéad was selected from the separate property of either husband or wife, it vests on the death of the person from whose property it was selected in the survivor for life. * * * In either» case it is not subject to the payment of any debt or liability contracted by or existing against the husband and wife or either of them previous to or at the time of the death of such husband or wife, except such as exists or has been created under the proAdsions of this chapter.” The words “in either case” plainly refer to the selection of the homestead. The selection may be made from the property of either the husband or the wife, but in either selection it shall not be liable for debts contracted or existing against both or either previous to or at the time of the death of one of them. The undoubted meaning and intent of the legislature was to vest in the survivor a home which could not be reached for debts contracted prior to the death of his or her spouse, regardless of whether such survivor was the head of a family or not.
By the Court: For the reasons stated in the foregoing opinion, the decree of the district court is reversed, and the case remanded with instructions to enter a decree preserving to the defendant Thomas Reece, his homestead interest in the property.
Reversed and reminded.