15 Neb. 200 | Neb. | 1883
This is an action of ejectment brought by the plaintiff' against the defendant in the district court of Lancaster county to recover the possession of the east half of the south-west quarter of section 22, in township 10, range 7 east. Judgment was rendered in the court below in favor of the defendant.
It appears from the record that in 1874 Hiram B. Keene and Nathaniel S. Keene, who were engaged in business in this state, became' insolvent. Actions by attachment were commenced agáinst them by some of their creditors, personal service being had, and the land in question attached as their property, although the legal title to the same was in the name of Josiah Keene, the father of said Hiram and Nathaniel. Judgments were afterwards recovered in these actions, and executions issued thereon, which were returned unsatisfied. Said judgments were as-' signed to one Clinton B. Jacobs, who filed a creditor’s bill against Josiah," Hiram, and Nathaniel Keene seeking to subject the land in controversy to the payment of the judgments.
Josiah Keene being a non-resident of the state, service was had upon him by publication. It is alleged in' the creditor’s bill that the attachments were never discharged, but remain in full force; that at the date of the levy of said attachment, the real estate above described belonged to Nathaniel S. Keene and Hiram B. Keene, although the legal title to the same was in the name of Josiah Keene; but that he was not the owner thereof, nor ever possessed any interest therein; that the title to said land was placed
In 1880 she made application to open the default in the •case of Jacobs v. Nathaniel S. Keene, Hiram B. Keene, and Josiah Keene, and the application being granted, she filed an answer, and it was afterwards determined that the land in dispute was the property of Josiah Keene, and not of. Nathaniel S. Keene and Hiram. B. Keene.
The power of the court, upon proper application to apply property within its jurisdiction to the payment of debts, is unquestioned. Two questions therefore are presented by the record. First, Can a creditor’s bill be sustained after judgment to subject lands previously attached as the debt- or’s, but held in the name of another who is a non-resident, to the payment of a judgment? Second, Is a bona fide purchaser under a judgment, declaring the lands to belong to the debtor, protected, the judgment being in full force, .and no appeal having been taken?
In Weil & Cahn v. Lankins, 3 Neb., 384, a creditor levied an attachment upon certain real estate as belonging to the debtor, and at once, before he had recovered judgment, filed a creditor’s bill to set aside certain alleged fraudulent conveyances of the attached real estate. It was held that the action would not lie, because the plaintiff's ■claim was a mere demand and had not been reduced to
2. The objection that the plaintiff herein, after the defendant had purchased the land in controversy, appeared in the case of Jacobs v. Keene and filed an answer therein, •and it was afterwards found that Josiah Keene was the •owner of said land, and not Nathaniel S. and Hiram B. Keene, does not affect the defendant’s title, although it may perhaps be sufficient to enable the plaintiff to recover damages against Jacobs. But the statute provides that a bona fide purchaser shall be protected. This question was before the court in Scudder v. Sargent, ante p. 102, and it was held that a purchaser under a judgment subsequently •opened is not affected by the vacation of the judgment. We adhere to thaf decision as a proper construction of the
Judgment affirmed.