62 Neb. 364 | Neb. | 1901
This controversy originated in the county court of Nuckolls county, where the estate of William Townsend, deceased, was being administered. The plaintiff in error, George G. Graham and S. W. Christy, claiming to be assignees and owners of a debt due from Townsend to James W. Carson, presented to said court for examination, adjustment and alio Avance a claim, Avhereof the folio Aving is a copy: “The estate of William ToAvnsend, deceased. In account with George C. Graham and S. W. Christy. March 1st, 1894. Account of James W. Carson, assigned to Geo. C. Graham and S. W. Christy, June 28th, 1894, $625.00. And l'/° interest from March 1st, 1894, to July 5th, 1895, $58.28. Total, $683.28.” The administrator, Duane ToAvnsend, objected to the allowance of this claim, and in a formal manner stated the grounds of his objection to be: “William ToAvnsend did not at the time of his death owe James W. Carson, assignor, $625, nor any amount whatever, nor did he OAve claimants, and said estate does not noAv OAve said Carson, or claimants any sum of money Avhatever.” Upon the claim and Avritten objection a hearing Avas had,-which resulted in an order of disalloAvance. From this order an appeal Avas taken. In the district court pleadings were filed, a trial Avas had, the issues Avere found in favor of the estate, and judgment Avas rendered dismissing plaintiffs’ claim.
The first point urged upon our attention is that the court erred in refusing to strike out a paragraph of the answer in which it is charged that plaintiffs’ claim originated in, and grew out of a fraudulent transaction — a transfer of property made by Carson to Townsend with
It is next contended by the plaintiffs that they were creditors of Carson; that the account was assigned to them in satisfaction of their claim; and that they are, consequently, not affected by the fraudulent transaction between their assignor and Townsend. This contention must be sustained. The evidence warrants no other conclusion than that the transaction between Carson and Townsend was fraudulent, and that the latter held in trust for the former a portion of the proceeds, of the property fraudulently conveyed. Whether the plaintiffs were creditors of Carson at the time of the fraudulent conveyance does not clearly appear. If they were not, it must be conceded that they could not, according to the weight of modern authority, claim any rights under section 17, chapter 32, Compiled Statutes, 1899. Sheppard v. Thomas, 24 Kan., 780; Keeler v. Ullrich, 32 Mich., 88; Hanson v. Power, 8 Dana [Ky.], 91; Fullington v. Northwestern Importers & Breeders Ass’n, 48 Minn., 490; Reid v. Gray, 37 Pa. St., 508; Bewick v. Muir, 83 Cal., 368; Sledge v. Obenchain, 58 Miss., 670; Lehmberg v. Biberstein, 51 Tex., 457; Porter
The judgment is
RlVEUSLL AND K13MANDED.