Savage v. Hazard

11 Neb. 323 | Neb. | 1881

Maxwell, Ch. J.

This is an action to quiet title. It appears from the record that on the 21st day of July, 1876, the defendant herein, Jonas B. Aiken, commenced an action by attachment, in the district court of Gage county, against Charles A. Savage, to recover the sum of $11,000 and interest, and on the 24th of that month caused certain real estate situate in Gage county to be levied on under the attachment as the property of Charles A. Savage. Service was had by publication, and on the 20th of December, 1876, judgment by default was taken against Savage for the sum of $11,308, and the property attached was ordered sold. A sale was thereafter had of the attached property, which was purchased by the defendant, Jonas B. Aiken, and on the 11th day of May, 1877, the sale was confirmed and a deed made to the purchaser. On the 26th day of November, 1875, Charles A. Savage conveyed the lands in controversy to his brother, William T. Savage, by warranty deed, for an expressed consideration of $10,000. On the 16th day of August, 1876, William T. Savage conveyed, by quit-claim deed, the land in controversy to Olivia T. Savage, the wife of Charles A. Savage, the consideration expressed in the' deed being the sum of $5,000. On the 27th day of June, 1877, the plaintiff commenced her action in the district court of Gf-age county, to remove the cloud from her title to the real estate in controversy, caused by the sheriff’s deed to the defendant, Jonas B. Aiken, and to quiet and confirm her title to said real estate.

The defendant, Jonas B. Aiken, answered the plaintiff’s petition, alleging, among other things, that Charles A. Savage “ deeded said lands to his brother, William T. Savage, on the 26th day of November, a.d. 1875, without receiving any consideration therefor; and the said William T. Savage, fraudulently colluding with the said Charles A. Savage, for the purpose of hindering, delaying, and defrauding this defendant, deeded said lands to Olivia T. Savage, the plaintiff, and wife of the said Charles A. Savage, without receiving any consideration therefor,” etc. These facts are denied in the reply.

It will be seen that the principal question in the case is, whether or not William T. Savage was a bona fide purchaser of the lands in controversy? He testifies that he came to Illinois in September, 1874. His brother Charles A., at that time being very sick, and supposing that he was about to die, wished to give Aiken one-half of these lands, provided Aiken would release his indebtedness to him (Aiken) and would pay about $1,500 incumbrance on the land. The other half of the lands he gave to the witness and his sisters. He also testifies that he gave his note for these lands in the sum of $10,000, in November, 1875; that when it was executed, an endorsement was put upon it of the amount that he claims to have previously sent to his brother Charles, and that after six months he paid thereon $1,000, and. that he assumed certain debts due from his brother to his sisters, amounting to several thousand dollars. He also testifies that in July, 1876, he offered Aiken a deed for one-half of these lands in liquidation of the indebtedness of his brother Charles, which Aiken declined. He also testifies that the plaintiff purchased these lands from him in August, 1876, giving $10,000 — that is, she gave him “two notes of five thousand dollars each — in payment at the time,” and the next year she paid $1,000 in cash thereon. On cross-examination he states that at the time he purchased these lands he knew that “his brother was greatly troubled with his debts.” He also states that his brother had conveyed certain real estate fo him in Quincy, Illinois, for a consideration expressed in the deed of $1,500, for which he had paid nothing.

To constitute a bona fide purchase for a valuable consideration, it must be without notice and with the money actually paid. In cases of trust, there must not only be a denial of notice before the purchase, but a denial of notice before payment of the money. Jewett v. Palmer, 7 Johns. Ch., 68. Harrison v. Southcote, 1 Atk., 538. Story v. Windsor, 2 Id., 630.

A person who purchases with notice, though for a valuable consideration, is not protected. It is very-clear to our minds that William T. Savage is not a bona fide purchaser. He seems to have taken the conveyance for the express purpose of delaying and defrauding the creditors of his brother. His own testimony establishes this fact; but when considered in connection with the other testimony in the case, the proof on that point is conclusive. The plaintiff purchased while the case of Jonas B. Aiken against Charles A. Savage was pending, and after the attachment had been levied upon the land; and according to her own testimony she paid nothing thereon until nearly a year from the time of the alleged purchase— the deed from the sheriff to Aiken for the lands in controversy being filed for record on the 2d day of June, 1877 — and is not a bona fide purchaser. No issue is made in the pleadings in regard to the indebtedness of Charles A. Savage to Aiken,’ and the large amount of testimony on that point in the record is not pertinent to the issue. The judgment of the court below, finding the issues in favor of the defendant, is clearly right, and is affirmed.

Judgment affirmed.