McCormick v. Brown

97 Neb. 545 | Neb. | 1915

Lead Opinion

Sedgwick, J.

In November, 1910, the defendant John J. Brown held the title to about 20 acres of land near the corporate limits of the city of Lincoln, and he and his wife, the defendant Alice A. Brown, had lived upon the land as their homestead. At that time he sold the land to William J. Bryan for the 'consideration of $8,750. This consideration was paid $5,000 in cash, and two promissory notes of Mr. Bryan, one for $2,258.62 and the other for $1,491.38. Afterwards Mr. Bryan reconveyed the hmd to Mr. Brown, who immediately conveyed to the defendant, Alice A. Brown. The plaintiff, William McCormick, began this action in the district court for Lancaster county against these defendants, Alice A. Brown and John J. Brown, in which action Mr. William Wilson intervened. The intervener alleged that in March, 1910, he loaned to the defendant John J. Brown $800, and took his promissory note therefor, due in six months, and that the title to the land was taken in the defendant Alice A. Brown to defraud the creditors of her husband, John J. Brown, and particularly this intervener. The issue between the plaintiff and the defendant Alice A. Brown was adjusted, and trial was had upon the petition of the intervener. The trial court found the issues in favor of the defendant Alice A. Brown, and entered a decree quieting her title. The intervener has appealed.

The defendant John J. Brown made no appearance in the action. It appears from the evidence that, at about the time of the sale and conveyance of the land to Mr. Bryan, the defendant John J. Brown, who was in some kind of business in the city of Lincoln, had failed, and his wife was aware that he was having difficulty with his creditors, so that she must have known that if he transferred to her property which was liable for his indebtedness it would operate to hinder and delay his creditors. We think, therefore, the question in this case is whether Mr: Brown did transfer to his wife property which in his hands would have been subject to the claims of his creditors.. Mrs. Brown was a witness in her own behalf, and appears to have answered all questions on the direct and cross-examination without hesitation' or evasion. Her knowledge in regard to the terms of some of the transactions was not as complete and accurate as we would expect in the case of an ordinary business man, hut the trial court appears to have relied upon her testimony in regard to those matters that were within her knowledge, and we have observed nothing in the record that requires us to find that the court was not justified in so doing. She testified that she was married to the defendant John J. Brown something more thau a year before the sale of the land to Mr. Bryan, and that at the time of her marriage her father gave her $1,000, which was mostly expended in furniture and household articles for their home. Afterwards her father procured insurance for them on the house and furniture, amounting altogether to $8,000. The property was destroyed by fire and the insurance was paid. She says that she received' $1,900 of the insurance money. There is considerable discussion in the brief as to her right to the $1,900. Mrs. Brown testified that there were two policies of insurance. She thought one of them was upon her house and the other upon the furniture and household goods, but she was not certain about this. It appears that the house and a considerable part of the furniture were included in one policy, as the property of Mr.' Brown. We do not regard this as of controlling importance in the case. The real question is how much of the property really belonged to Mrs. Brown. The fact that, in making out the policy, a transaction in which she took no part, some of the household furniture that belonged to Mrs. Brown was included in the policy upon the house does not appear, under the circumstances in this case, to be inconsistent with the testimony of Mrs. Brown as to the ownership of the property. She testifies that when the property was sold to Mr. Bryan she understood from Mr. Brown that he was selling it for something over $14,000, and that Mr. Brown promised her $6,000 of the money as her “dower interest” in the property. As a' matter of fact, he never gave her any of the money at all, but he transferred to her immediately after the sale of the property Mr. Bryan’s promissory note, $2,258.62. She repurchased the property from Mr. Bryan. Mr. Bryan, knowing that there was some question raised as to the good faith of Mr. Brown in these transactions, declined to convey the property directly to Mrs. Brown, and insisted on returning it, at her request, to Mr. Brown from whom he received the title. This was done, and Mr. Brown immediately transferred it to Mrs. Brown. She did all of the negotiating with Mr. Bryan for a return of the property. Mr. Bryan, at her solicitation, consented to return the property for the amount that he had paid for it, with interest thereon at 6 per cent, per annum, amounting at the time to $9,071.32. Mrs. Brown procured a loan upon the property in the sum of $4,897.80. She testified that she paid Mr. Bryan for the property by returning to him the note, $2,258.62, and giving him the check, the proceeds of the-loan, $4,897.80, and a payment in cash, $1,914.90. This, cash item was the amount that she had received in the settlement with the insurance companies. The intervener testified that Mr. Brown promised to pay his claim out of' the proceeds of the sale to Mr. Bryan, but failed to do so.. It appears that Mrs. Brown was not aware that he had! failed to make such payment when she repurchased the property from Mr. Bryan. No fraud can be predicated on the conveyance to Mrs. Brown of the homestead interest of $2,000 in this property. Under the act of 1907 (laws 1907, ch. 49), which is now secs. 1265-1272, Eev. St. 1913, Mrs. Brown was entitled to a one-half interest in the real estate of her husband, which he could not will or convey aw-ay from her. Gaster v. Estate of Gaster, 92 Neb. 6.

' The evidence indicates that the land was worth more than the amount that it was sold for to Mr. Bryan; but if we consider its value to have been $8,750, and deduct the $2,000 homestead estate, Mrs. Brown’s one-half interest Avould be more than the amount of the note that was given her in lieu of that interest. If her personal property, for which she received insurance money, was worth' $1,000, and Mr. Brown transferred to her the homestead interest, $2,000, and one-half of the value of the land after deducting that interest this would be more than Mrs. Brown received as her interest in the proceeds, and the creditors of Mr. Brown could not complain. The creditors of Mr. Brown therefore are not in a position to complain of her purchase of this property as she did.

The judgment of the district court is

Affirmed.

Eose, J., not sitting.

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Dissenting Opinion

Letton, J.,

dissenting.

I did not hear the argument in this case; but, since the-doctrine announced in the second paragraph of the syllabus is directly opposed to the language of the statute and is of great importance, I feel it ray duty to call particular attention to it by this dissent. Section 1269, Rev. St. 1913, provides: “The right of a married man or woman to inherit a part or all of the real estate of which his or her spouse Avas seized of an estate of inheritance at any time during the marriage may be barred * * by the sale of such real estate under execution or other judicial sale, during the lifetime of the owner.” In Gaster v. Estate of Gaster, 92 Neb. 6, 14, Sedgwick, J., says, speaking of the language of this section: “It recites the right of a married man or woman in the • property of his or her spouse, provides in express terms how that right may be barred, and excludes the poAver to bar that right by will.” The holding in the present casé is inconsistent with this statement. It holds, in effect, that the right of one spouse to inherit the real estate of the other can not “be barred * * * by the sale of such real estate under execution * * * during the lifetime of the OAvner.” This holding affects the property interests of every creditor of a man or Avoman in the state who owns real estate in excess of the homestead exemption. The language of the statute is plain. It requires no construction. Formerly a sale of the wife’s real’estate to pay her debts barred the curtesy of the husband. Miller v. Hanna, 89 Neb. 224. But a sale for the husband’s debts did not bar the dower right of the wife in his real estate. Butler v. Fitzgerald, 43 Neb. 192. The legislature by this statute changed the law, placed husband and wife on a parity in this, as in other respects, and made the real estate of either spouse, in excess of the homestead exemption, subject to sale for his or her debts.

In Gaster v. Estate of Gaster, 92 Neb. 6, the Avriter of that opinion also said: “No duty of this court is more manifest and exacting than the duty to avoid trespassing upon the province of the legislature. * * * It is not for this court to determine the legislative policy, nor to criticize that policy when adopted by the lawmakers. If apparently matters have been omitted in legislation which would have been supplied if brought to the attention of the lawmakers, it is not within the province of the court to supply such omissions. Hasty and ill-considered legislation can be revised only by the legislature itself.” This is sound doctrine. It is equally true that, when the legislature has spoken in plain and unambiguous language, it is not for the-court to interpret language that needs no interpretation, or to disregard and virtually repeal the law. A law may seem to the members of this court to be unwise, but, nevertheless, it is the duty of the court to declare what has been plainly written, and not strain the language in Order to inject a new meaning, and thus attain a-result-that appears to it to be more desirable. It is for the legislature, and not for the court, to repeal or amend a statute.