48 Neb. 48 | Neb. | 1896
On the 30th day of December, 1891, Adolph Goldsmith, Weis & Oppenheimer, Wolf & Go., Heyman & Sweet, and the Middleton Plate Company, as plaintiffs, brought an action in the district court of Douglas county against O. L. Erickson, Charles E. Ford, and the Union National Bank of Omaha. The averments in the petition were, in
The theory upon which the original plaintiffs and those
The original petition, as well as those of the inter-venors, charged that the fraudulent transaction consisted in a sale, by Erickson to Ford, with intent to hinder and delay the creditors of Erickson, shared by the vendor and vendee, and by an accompanying agreement that when sufficient goods have been sold to satisfy the debt of Erickson due the Union National Bank, the remainder
The next question is whether or not the purchase, as a question of law, must be deemed fraudulent as against the creditors of C. L. Erickson. This inference in the first decree was doubtless deemed unavoidable in view of Bonus v. Garter, 20 Neb., 566, then believed to embody the established rule of law in this state. In Kilpatrick-Koch Dry Goods Go. v. Bremers, 41 Neb., 863, it was pointed out that the majority opinion in the case of Bonus v. Carter, supra, was contrary in its logic to Hershiser v. Higman, 31 Neb., 531, and Hamilton v. Isaacs, 34 Neb., 709. In Jones v. Loree, 37 Neb., 816, and in Smith v. Phelan, 40 Neb., 765, it was unequivocally announced that Bonns v. Carter was overruled. It has been repeatedly held that the existence of fraud is a question of fact, and in this case the conveyance was improperly found by the court in its fifth finding to be in conflict with the general assignment law of Nebraska and therefore void. This disposes of all questions necessarily involved, and the judgment of the district court is reversed and this cause is remanded with directions to the district court to dismiss all the petitions filed in this case at the costs of plaintiffs and the inter-venors.
Reversed and remanded.