46 Neb. 225 | Neb. | 1895
This action was one in replevin by Powell against Yeazel, R. A. Boyd, Fred Einspahr, and George Crane. It was begun before a justice of the peace, and the property involved being appraised atan amount beyond the jurisdiction of the justice, the case was certified to the district court. After a verdict there for the plaintiff, a motion for a new trial having been sustained, amended pleadings were filed and the case again tried, resulting in a verdict and judg
It will be observed that the salient questions in the case-are, first, the validity of the levy; second, the bona fides of the conveyance from Eiuspáhr to his wife, and third,, the bona fides of the sale by Mrs. Einspahr to the plaintiff. There was undoubtedly evidence sufficient to go to the-jury on the last two issues. It is contended by the plaintiff that the evidence was insufficient to establish a valid levy of an attachment. The record before us does not con
At the request of the defendants the following instruction was given: “You are instructed as a matter of law that if from the evidence you will find that at the time of the pretended sale of the property in controversy by Herman Einspahr to Anna Einspahr and by her to this plaintiff, there was no immediate delivery to either of them followed by an actual and continued change of possession, and you find that said pretended sale was made with the intention on the part of Herman Einspahr and Anna Einspahr to defraud the creditors of Herman Einspahr, though said fraudulent intent was not known to or participated in by the plaintiff herein, the sale is void as to creditors and you must find for the defendant, unless you further find that plaintiff purchased said property and received possession then or prior to the levy of the attachment, or unless you find that Abraham Yeazel consented to and agreed that such sale and transfer should be made in consideration of Anna D. Einspahr’s executing the conveyances referred to in these instructions.” We think the learned district judge gave this instruction without sufficiently observing the language
Reversed and remanded.