69 Neb. 349 | Neb. | 1903
This suit grows out of the following matters: In 1887, appellant, Burton Rice, resided in Holt county, and gave a mortgage on a one-half section of land owned by him for $1,100. The loan was negotiated by Hugh A. Allen, appellee, who was acting as the agent of some investment company. Some months after the loan was negotiated, appellee, Allen, examined' the land and found it to he of very little value. About this time appellant removed from the land and located in .South Omaha, and about the same time, and on September 20, 1887, he and his wife executed a quitclaim deed in blank for the premises, with an expressed consideration of $3,000. This deed was delivered to appellee, Hugh A. Allen, with the understanding that he was to sell or trade the premises for whatever he could get above the amount of the mortgage, and whatever he obtained was to be divided with appellant, Rice. Some time after appellee, being unable to dispose of the land, sent the quitclaim deed to one Lusk, in Omaha, for Lusk to attempt to dispose of the land. Lusk, it appears, traded the quitclaim deed for an equity in some lots in the outskirts
In January, 1901, this suit, in the nature of a creditor’s bill, was instituted in the district court for Holt county against Hugh A. Allen, his wife and other persons, appellees, to set aside, as fradulent, deeds made by third parties to Mrs. Allen for a large amount of land in Holt county, upon the ground that the land was in reality the land of Hugh A. Allen and that title had been taken in the name of Mrs. Allen to prevent the collection of the judgment of appellant. The petition is in the usual form, and in additional allegations the revivor of the judgment is set put. Separate answers were filed by Hugh A,
To the answers of Hugh A. Allen and his wife, there was filed a reply, which among other things pleaded that Hugh A. Allen should have appeared in the revivor proceedings and set up the invalidity of the judgment, and having failed to do this, he was concluded by the judgment of revivor; that it was res adjudicada, as to these proceedings, and that any relief he might otherwise have been entitled to, was barred by the statute of limitations. Trial was had resulting in a finding and judgment for appellee, perpetually enjoining any attempt to collect the judgment, removing the cloud cast by the judgment from the title of appellee, and that appellant pay the costs. From tMs judgment an appeal is prosecuted to this court. It is disclosed by the record that the conveyances wMch are alleged to be fraudulent, were conveyances made by tMrd parties to Mary E. Allen, the title to such land never having been in the husband, Hugh A. Allen. Under this state of the record, appellant contends that the burden of proof is upon the wife to show the good faith of such conveyances. The trial court held otherwise, and placed the burden of proof upon appellant to show that the conveyances were
“Transactions between husband and wife in regard to the transfer of property from him to her, by reason of which creditors are prevented from collecting their just dues, will be scrutinized very closely, and it must clearly appear that such transfers Avere made in good faith and for value.” First Nat. Bank v. Bartlett, 8 Neb. 319.
But this rule has no application to conveyances made by third parties to the wife, no showing being made that the husband purchased the property or that any of his funds were used in payment. In such case the burden is upon parties alleging fraud to establish it by evidence. The authorities cited by appellant upon this branch of the case are not in point, and do not support the contention made. The appellant having wholly failed to sustain the charge of fraud in the conveyances to the wife by any evidence, it folloAvs that the judgment of the trial court as to defendant, Mary E. Allen, is beyond question right, and must be affirmed.
It is further contended, that the finding of the trial court, that Hugh A. Allen was never served with summons in the proceedings in the Douglas county district court, is unsustained; and that there was error in the finding that the appearance of the attorney, Williams, was unauthorized, and the judgment void. It may be remarked that the judgment referred to is made beyond question to appear to be wholly and entirely without equity. It appears that at the time Rice, appellant, obtained the loan of $1,400, the land was worth not to exceed $1,000. Appellee seems to have made an honest effort to find a purchaser for the premises who would pay the interest on the loan; fearing that the fact that he had made a loan of $1,400, on land not worth to exceed $1,000, Avould reflect on him; although it was disclosed that he was not the examiner, and never saw the land until long after the loan Avas made. But he was unable to sell the land and never received anything for it, and, at the time appellant recovered
Appellee testifies that no summons was ever served upon him, and that he had no knowledge of the proceedings of the Douglas county district court until long after the judgment was entered. This evidence was in no way contradicted. The sheriff was not called to sustain his service, although it was disclosed where he resided, and that his deposition might have been taken. Again, appellee testifies positively that he never authorized Williams to appear, and questions whether there was in fact such a person. Soon after he learned that judgment was entered against him, lie made inquiries both in Omaha and South Omaha, and was unable to find any such person. It is made to appear that soon after the judgment was entered, the action was dismissed as to the Cochrans, and this fact makes all the more credible the contention of appellee that the entire transaction was a fraud perpetrated in the most deliberate manner. Courts of equity can not lend their aid to the enforcement of judgments so clearly fraudulent as that which is the basis of the creditor’s bill in this case. It is clear that the testimony of appellee, supported as it is by the circumstances indicated, is amply sufficient to sustain the finding of the trial court in this regard.
It is contended that even though no service was had upon appellee, and no authorized appearance by him in the proceedings in the Douglas county court, yet, personal service of the order to show cause why the judgment should not be revived against him, having been served upon him, and he having failed to appear in the revivor proceedings, he is now concluded by the order of revivor. We are unable to find merit in this contention. A number of cases are cited to this point. Our examination of them convinces us that they do not sustain the contention made. Among these cases are, Enewold v. Olsen, 39 Neb. 59, and Wittstruck v. Temple, 58 Neb. 16. In each of these cases, the judgment being considered showed upon its face that it
“The object of such proceedings is not to strengthen or improve the original judgment, but merely to screen it from the operation of prescription; and the judgment of revivor can not have the effect of stripping the defendant of any means of attack by a direct action on said judgment for nullity.”
We are of the opinion that the rule stated is the correct one, and that if the judgment is one of form only, and is void for want of jurisdiction, it will remain void, notwithstanding proceedings to revive.
It is very clear that appellee, had he appeared in the revivor proceedings, could not have obtained the relief to which he appears to be entitled in the case at bar. Even though he could have shown that the judgment was void, it is well settled that he could not have gone beyond the judgment and shown that he Avas not indebted to appellant. The judgment, long prior to the proceedings to revive, had been transcribed to the district court for Holt county, and probably other counties. The judgment so transcribed was a cloud and an apparent lien upon the lands owned by Hugh A. Allen in such counties, so that had he appeared and shown that the judgment was void, this would not have removed the cloud cast by the judgment. It Avould probably have required one or more additional suits, in order to obtain the relief needed. This is always one of the grounds upon which the jurisdiction of a court of equity may be invoked. Appellee might, if he sa,w fit, disregard the revivor proceedings, and wait until an attempt was made to execute the void judgment, before attacking it for nullity. We are satisfied that in the case at bar, the judgment being void in the first instance for want of service, it remained void, notwithstanding personal service of the notice to revive. What would have been the
Shortly after the judgment in the Douglas county district court was rendered, defendant saw in the newspapers a notice of that fact, and upon inquiry found that he was the judgment defendant. This does not conclude him, as contended by plaintiff in error. The judgment of the trial court seems to us to he amply sustained. It is therefore recommended that the same be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.
