66 Neb. 785 | Neb. | 1902
Henry D. Jayne filed his amended petition in the nature of a creditors’ bill in the district court for Phelps county on the 21st day of June, 1900, against the defendants, William E. Hymer, Mary Hymer, his wife, and others, to set aside a deed made by the Holdrege National Bank, by which it conveyed the west half of lots 7, 8 and 9, in block 12, of the Second addition to the city of Holdrege, to Mary E. Hymer,. and subject the property to the payment of a judgment which he had obtained against her husband, on the ground that the property belonged to Hymer, and had been conveyed by the bank to his wife fraudulently, and for the purpose of cheating and defrauding his creditors. All of the defendants, except Mary E. Hymer, defaulted. She filed her answer, in which she set forth that she was the bona-fide owner of the property in question; that she paid the consideration therefor; that her husband had no interest therein; that she claimed the property, which consisted of the half lots above described, together with a small dwelling-house thereon, as her homestead, and a home for herself, her husband
An examination of the record and the bill of exceptions discloses the following facts: In the year 1879 William E. Hymer and his wife, the appellees herein, came to Phelps county from their former home in the state of Illinois. Hymer had no property at that time except his horses and wagon, and a small amount of household furniture. Mrs. Hymer had in her possession $210 in money, which came to her from the estate of her deceased father. They found a person from whom they purchased the improvements that he had placed upon a piece of government land which he held as a homestead, took an assignment of his rights, had his entry canceled, and Hymer filed upon it as a homestead. Mrs. Hymer, out of the money she then had, paid $115 to the former claimant; paid the filing fees, and the balance of her money was used to improve the land. They lived on this homestead until Hymer proved up, and procured his patent therefor. Meanwhile he had engaged in the hardware and implement business at a little town near his farm, and when the village of Holdrege was started they sold their homestead and Hymer moved his hardware and implement business to that place. The understanding between Hymer and his wife had always been that the homestead should be deeded to her, to be kept as their home, and for the purpose of reimbursing her for the money which she had put into it. This was never done, but when they moved to Holdrege the homestead was sold, three lots were purchased in the village, and a good house was built thereon, which was occupied by them as their homestead up to the fall of 1894. After removing to Holdrege, Hymer had engaged in the banking business, and on October 11, 1894, he was the president and a director of the Holdrege National Bank. He had become largely indebted to that institution, and
This judgment should be sustained: First — Because neither the petition nor the evidence discloses that at the time the conveyance complained of was made the appellant was a creditor of William E. Hymer in any amount or to any extent whatever. Neither does it appear that the conveyance was procured by Hymer to be made to his wife in anticipation of the fact that he would become indebted to the appellant. In order to maintain a creditors’ suit against a wife to set aside a conveyance of property made by a third person to her, the relation of debtor and creditor must have existed between the plaintiff and her husband at the time such conveyance was executed; or it must have been executed fraudulently, with the expectation on the part of the husband that he would become indebted to the plaintiff at a future time, and for the purpose of preventing, hindering and delaying the collection of the debt when it should finally be contracted. Lavigne v. Tobin, 52 Nebr., 686; Callahan v. Powers, 24 Nebr., 731; Jansen v. Lewis, 52 Nebr., 556. Second — It appears from the evidence that the court was justified in finding that the property in question belonged to the wife; that it -was purchased with the product of her money, and was conveyed to her in payment for money of her own that she had advanced to the husband, Avhich had been used by him in procurring other property, and which was, among other things, the consideration for the conveyance in question. The evidence was amply sufficient to sustain this finding, and it should not be set aside because we are unable to say that it was clearly wrong. This finding alone is sufficient to sustain the judgment dismissing the bill. Third — It appears from the evidence that the property, even were it owned by the husband, would be exempt as a homestead, and could not be subjected to the payment of the appellant’s judgment. An action in the nature of a creditors’ bill can not be predicated upon the conveyance of exempt
It is apparent, therefore, that the judgment and decree of the district court was right, and we recommend that it be affirmed.
Oldham and Pound, CC., concur.
By the Court: For the reasons given in the foregoing opinion, the judgment of the district court is
Affirmed.
30 Am. Rep., 827.
68 Am. St. Rep., 589.