65 Neb. 173 | Neb. | 1902
This is an action in the nature of a cre<" '¿ors’ bill brought by the appellee, Cora Bell Hill, for the purpose of
We do not think that it sufficiently appears from the petition that John Schmuck was insolvent at the date of the conveyance, or that he was at that time indebted to the plaintiff, and it is not very strenuously contended by counsel for the plaintiff that it does sufficiently so appear; but reliance is placed mainly upon the fact, alleged by the petition and admitted by the demurrer, that the conveyance by the judgment debtor to his wife was without pecuniary consideration. By reason of this fact it is contended that the equitable title remains in the grantor, his wife holding merely the naked legal title in trust for him, and that as equitable titles are, in this state, liable to be taken for the payment of the debts of persons possessing
To the same effect is 2 Washburn, Beal Property [3d eel.], 440, et sequitur and notes; 2 Story, Equity Jurisprudence [13th ed.], paragraphs 1203 and 1204, and notes, — the author saying that the presumption is stronger in case of a wife than of a child, for she can not at law be the trustee of her husband. The consequences of a contrary doctrine would be somewhat appalling. It is a common, and has hitherto been regarded as a meritorious, or, at any rate, creditable practice, for men who are free from debt to make conveyances of property to their wives and children, and other dependents, so as to insure the grantees against the consequences of possible'future financial disasters. If it be true that such conveyances are ineffectual to pass or affect the equitable or beneficial titles, not only is their immediate object defeated, but the grantees are in a worse condition than that of those who accept conveyances confessedly in fraud of creditors. In the latter case the defect is cured and the title quieted by the lapse of a definable term of limitations, but in the former the titles, continuing to reside in the grantors, would be liable to be appropriated for the payment of their debts contracted fifty years later. Not only so, but a grantee in fraud of creditors may successfully resist an attempt by his grantor to obtain a reconveyance; but it is the policy of the law to unite legal and equitable titles in the same person, and an unfortunate wife or child, being,
By the strict rules of practice, the action ought to be dismissed, but it is evident that both parties are misled by a hot unnatural misconstruction of the decision in Millard v. Parsell, supra, and we therefore recommend that the judgment of the district court be reversed, and the cause remanded, with leave to the plaintiff to amend her petition.
By the Court: For reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be reversed, and the cause remanded with leave to the plaintiff to amend her petition.
Reversed and remanded.