104 F. 174 | 8th Cir. | 1900
after stating the case as above, delivered the opinion of the court.
A motion is made to dismiss the appeal on the ground that the co-defendants of the appellant have not joined in it, and there was no summons and severance. But a summons and severance are not in
Turning to the merits of the case, the record establishes these facts: The judgment of the Trust Company against Erasmus Bennett and Edwin R. Bennett was rendered in the district court of Shawnee county on September 16, 1893, and evidenced a just indebtedness incurred by them in the year 1891. The deeds of the property in controversy from Erasmus Bennett and Edwin R. Bennett to Ciará E. Bennett were executed and delivered to the grantee on or about January 3,1893, so that the judgment of the Trust Company constituted no lien upon the real estate in question. These deeds were made for the purpose of covering up the property of the grantors, and were fraudulent and voidable as against their creditors. The note for $20,465.08, dated August 8, 1894, made by Clara E. Bennett, and payable to John P. Johnson, was given to secure a portion of a bona fide indebtedness of Erasmus Bennett and Edwin R. Bennett to John P. Johnson for an amount in excess of $21,000, for more than $21,000 of which Clara E. Bennett was a surety. The mortgage upon the real estate in controversy made by Clara E. Bennett and her husband, Erasmus Bennett, on August 10, 1894, was made to secure that portion of this indebtedness evidenced by the note of Clara E. Bennett, dated August 8, 1894. John P. Johnson procured this note and mortgage to secure a portion of a bona fide indebtedness of the Bennetts to him, and he did not take this note and mortgage for the purpose or with the intent to aid the Bennetts- in defrauding or cheating any of their creditors, or in placing their property beyond the reach of the process of the courts. There is a spirited contest in the evidence over the question whether or not Johnson knew, or had such notice as would charge him with knowledge, that the deeds of January 3, 1893, to Clara E. Bennett, were made with intent to defraud the creditors of the grantors. In view of the facts which have already been recited and found to be established in this case, it is unnecessary to determine this question. Conceding, but not deciding, that Johnson had notice or knowledge of the fact that the deeds to Clara E. Bennett were made to