66 Neb. 610 | Neb. | 1902
On the 19th of July, 1899, Lewis C. Parker, one of the appellants herein, was, on his own petition, duly adjudicated a bankrupt by the district court of the United States for the. district of Nebraska. Frank B. Sheldon is the trustee of the bankrupt estate, and because of the insufficiency of the assets to pay the claims of the creditors, amounting to about $26,000, lie instituted this action to hare certain property held by Maude Lord Parker, wife of the bankrupt, and by the Drake Land Company, a corporation, decreed to be held by said parties in trust for the said Lewis C. Parker, and the conveyances thereof set aside, and said property held to belong to the trustee. Numerous pieces of property are described in the'petition filed in the district court, of which it is alleged Lewis O. Parker is the equitable owner; but upon the trial the court found that three tracts only were held in trust for the bankrupt, and that two other tracts, the legal title to which had stood in the name of his wife, had been conveyed by her to innocent purchasers, and entered judgment against her for their value; and as the-trustee has not appealed from the decree, it will only be necessary to examine the decree entered and the evidence upon which it. is
The first tract is what is known as the “Home Place.” This embraces about sixteen acres of land, which, for some years prior to 1896, was the homestead of Almira T. Parker, the mother of Lewis 0. Parker. Maude Lord Parker, wife of Lewis 0. and one of the appellants, claims title to this tract through a deed of conveyance made to her by Almira T. Parker, dated May 6, 1899. The district court found that on February 20,1896, Almira T. Parker, then a widow, made a division of her property between her two sons, Lewis C. Parker and Prank H. Parker; that to perfect said division, she executed deeds to several pieces of property, which deeds were delivered to Lewis C. Parker, to be held in trust for himself and his brother, Frank, until the death of their mother, who was to retain a life interest therein. Among.other tracts conveyed was the home place, Lewis C. and Frank H. Parker being joint grantees in the deed conveying that property. The court further found that this deed was never recorded, but that by virtue of said deed Lewis C. Parker acquired an undivided one-half interest in the premises conveyed, the said Frank H. Parker acquiring the other undivided one-half interest; that on the 3d day of May, 1899, Frank H. Parker, being then the owner in fee of an undivided one-half of said home place, for a valuable consideration, paid to him by Lewis C. Parker, sold and conveyed by warranty deed the undivided one-half interest which he then had and owned in said premises, whereby said Lewis C. Parker became sole and entire owner of all of said premises; and that for the purpose of fraudulently concealing his ownership of said premises from his creditors, and hindering, delaying and defrauding such creditors, Lewis 0. Parker caused the deed to himself from Frank H. Parker for said premises, to be so altered and manipulated as that the legal title to said premises now appears to be in the name of the defendant Maude Lord Parker, his wife; that on or about the 6th day of May, 1899, the defendants Lewis C. Parker
We think the evidence fully sustains this finding of the court. On the 23d of March, 1896, a written agreement was made between Frank H. and Lewis C. Parker, which recites the following: “This agreement, made and entered into this 23d day of March, A. D. 1896, by and between Frank H. Parker of Santa Cruz, California, and Lewis C. Parker of Beatrice, Nebraska, witnesseth: That whereas the estate of Almira T. Parker has been divided between the parties hereto, that said division is hereby mutually agreed upon; and it being the desire of the parties hereto to make no change of title to property owned by Almira T. Parker until after her death, and whereas certain papers pertaining to her estate have been properly executed and are now in the hands of Lewis C. Parker to be held by him for Frank H. Parker and himself: Therefore be it understood and agreed by the parties hereto that the following papers are not to be recorded until the death of Almira T. Parker:. * * * Deed from Almira T. Parker to Frank H. Parker and Lewis C. Parker jointly conveying lots 42 to 60, and 63 to' 71, inclusive, of I. N. McConnel’s subdivision of the south half of the southeast quarter of section 32 — 4—6, being the home place, of about sixteen acres; lot 26 McClelland’s addition; also the northwest quarter of
There is other and stronger evidence in the record to support the finding of the district court. In order to fully understand the situation it will be necessary to go back to the death of Hiram .W. Parker, the father of Frank and Lewis, which occurred April 11, 1893. At the time of his death Hiram W. Parker was largely interested in the Beatrice Canning Company and had become liable upon the notes of that company for something over $34,000. On the 20th of March, 1896, Frank H. and Lewis C. Parker entered into a written agreement, in which it is recited that they are the only heirs at law of Hiram W. Parker, and that it was desired to settle up said estate without administration; that they had agreed upon a division of said estate throughout, except the homestead, consisting of about sixteen acres, in West Beatrice, where the widow of the deceased now resides. The agreement then continues as follows: “And whereas the said Hiram W. Parker was party as maker to several promissory notes and other •evidences of indebtedness in the sum of $5,000 for the Beatrice Cemetery Association, and in the sum of $34,150 for the Beatrice Canning Company of Beatrice: Now, therefore, be it understood and agreed, that said Lewis C. Parker has already assumed the liabilities of the said Hiram W. Parker for the payment of said indebtedness and may be compelled to pay large sums thereof: Therefore, it is further agreed, that any indebtedness of the late Hiram W. Parker aforesaid that he, the said Lewis C. Parker, may be compelled to pay, either in the way of principal, or interest, or costs, or attorney fees, by reason
The evidence, to our understanding, is quite conclusive that after Almira T. Parker, the mother of Frank H. and Lewis O. Parker, deeded what is known as the “home place” to her sons in 1896, the deed' conveying that property was delivered to Lewis O. Parker and held by him for himself and his brother. Afterwards he entered into negotiations with his brother for the purchase of Frank’s one-half interest in the property, and some time previous to April 28, 1899, Frank H., who lived in California, had made out and sent to Lewis C. a deed for his half interest in that property. ' Under date of April 28, 1899, Lewis C. wrote to Frank as follows: “Yours received and noted. Under the circumstances and to avoid any litigation, I am willing to purchase your one-half in the home place for the indebtedness due me from you, acct. Canning Co. affairs. The deed' you sent was not correct description. I enclose one written-exactly as the title shows on record. Upon its receipt by me I will surrender to you receipts in full for any and all amounts due me from you on statements rendered and thus close-up this unpleasant matter. Ma is to have a life lease on the place, of course. She is to pay the taxes and conduct it balance of her life as she
We think that the evidence of Lewis C. Parker’s own letters fully justifies the finding that he purchased his brother Prank’s one-half interest in the home place in
A second tract in dispute is part of a lot in the city of Beatrice, generally known as the “Moody building.” Relating to this the court found:
“The court further finds that on about the 20th day of*618 February, 1896, the said Almira T. Parker, a widow, being then the owner of the following described real estate situated in the city of Beatrice, in the county of Gage, state of Nebraska, to wit: The west half of lot eleven (11) (except six inches off the west side thereof) in block forty-eight (48) in the original town, now city, of Beatrice, being the real estate generally known and described as the ‘Moody Building,’ or ‘Moody Property,’ for a gpod and sufficient consideration, by warranty deed duly executed, conveyed said premises to the said Lewis O. Parker, who then and thereby became the absolute owner of said premises in fee simple, and has ever since said last mentioned date continued to be and still is the absolute owner in fee simple of said premises, subject only to the rights and title of the plaintiff in and to said premises since the 19th day of July, 1899, by virtue of plaintiff’s appointment as trustee of said Lewis 0. Parker and his estate in bankruptcy, as aforesaid; that said deed to said west half of said lot eleven (11) in block forty-eight (48) in the city of Beatrice was on or about the 20th day of Feb.ruary, 1896, after being duly signed and acknowledged by said Almira T. Parker, by the said Almira T. Parker duly delivered to the said Lewis 0. Parker; that at the time the said deed was so delivered to the said Lewis 0. Parker, the said Lewis 0. Parker was the sole grantee in said deed and the name of the said Lewis 0. Parker appeared in said deed as the sole grantee therein; that some time after the delivery of the said deed to the said Lewis C. Parker and after the title to and the ownership of said premises had been vested in him, but before said deed had been recorded, the said Lewis G. Parker, for the purpose of fraudulently concealing his ownership of said premises from his said creditors and of hindering, delaying, cheating and defrauding his said creditors, fraudulently changed the said deed by so altering the same as to cause the name of the defendant Maude Lord Parker, the wife of said Lewis 0. Parker, to appear as grantee in said deed in place and instead of the*619 name of the said Lewis C. Parker; that said deed was not recorded until the'lltli day of February, 1897, at which time said deed, after having been fraudulently altered as aforesaid, and in its said fraudulently, altered form was by the said Lewis 0. Parker filed for record in the office of the register of deeds of Gage county, Nebraska, and was then in its fraudulently altered form recorded in said office; that the said recording of the said fraudulently altered deed by the said Lewis C. Parker was made for the purpose of fraudulently concealing the ownership of said premises by said Lewis C. Parker from his creditors and causing said Maude Lord Parker, the wife of said Lewis O. Parker, to appear to be the owner of said premises and thereby hindering, delaying and defrauding the said creditors of said Lewis 0. Parker.’7
The court further found that on the 30th of September, 1899, this property was conveyed to the Drake Land Company, and that said conveyance was made for the purpose of further hindering, delaying and defrauding the creditors of Lewis C. Parker; that the conveyance to the Drake Land Company was wholly without consideration; that Maude Lord Parker, at the time of such conveyance, was the principal stockholder in- said company and a director thereof; that the president of the company was her stepfather ; that the secretary was. her husband, and that her mother was also a director in the company; that these parties owned all the stock of the company and managed its affairs; and that whatever title or interest the said Maude Lord Parker and the said Drake Land Company, or either of them, may have or may have had in or to said premises, was in equity and good conscience held merely in trust for Lewis C. Parker. It is undisputed that Almira T. Parker was the owner of this property prior to the 20th of February, 1896. On that day it is conceded that she deeded this property. The plaintiff claims that the deed ran to Lewis C. Parker, while the defendants assert that the conveyance was to Maude Lord Parker. In the agreement of March 23, 1896, heretofore referred
Does tbe evidence support tbe finding of tbe court? Frank H. Parker, who was present when this deed was made, testifies that be saw bis mother sign it, and that it was a regular printed form of warranty deed, tbe blanks being filled with the writing of Lewis C. Parker. Relating to tbe making and delivery of these deeds be says: “They were left there after my mother signed them. She got up from her desk and left tbe deeds on tbe desk. I looked at them and examined them and then we talked what we would do with those deeds. I says, ‘You take them and put them in your safe or in your vault, or in tbe bank/ and I suppose they were; and before I went away, a month later, in March, I requested a memoranda of these papers that they should be left with him in trust, and we entered into that agreement because I wasn’t going to be there on tbe ground and be was. Tbe deeds, tbe inventory — I took tbe inventory and left the deeds in bis bands according to that agreement. Q. After these deeds were signed by your mother there on that day did you ever see them again? A. Yes, sir. They were all together on bis desk when we talked about the agreement. Q. After that day where did you see them? A. They were in bis bands and left in bis desk.”' It can not be doubted that to whomsoever tbe deed ran, it was made and delivered on the 20th of February, 1896, and that on tbe 20th of March of tbe same year, at tbe time tbe agreement of that dáte was entered into between Frank and Lewis, this deed, with others, was in tbe possession of Lewis C. Parker; the strong inference from tbe evidence being that it was taken by Lewis C. from tbe residence of Almira T. Parker when made, and remained in bis pos
That Lewis C. Parker was devising ways and means to put his property beyond the reach of his creditors, is abundantly and overwhelmingly shown by his letters to his brother, and as these letters will have to be taken into consideration in passing on some of the other transactions involved, we will quote from them here. In a letter of November 6, 1896, relating to the conveyance of a lot by Frank H. Parker, he said: “Make deed in blank, or to my wife, Maude Lord Parker. As the shape my finances are in just now — owing to 1st NatT and Cann’g Co. complications, I do not wish to own it myself. See?”
In a letter of December 28, 1896, he wrote his brother as follows: “I think I wrote you why I can not have property in my own name. You will remember I signed my name to paper,” etc. “1st Natl holds $11,401. * * * You can readily see that if I own any real estate they can take it on judgment. Now I took the land (% section near Pickrell, joining Frank Holt farm on the east) in Lysander Cowles’ name.- They can not touch that, at any rate not just now. There will probably be a lot of litigation ahead for me. * * My home place is in Maude’s name. So the deed you are to send me should be likewise. * * * I am ‘not a property owner’ on the records.”
Under date of September 8, 1899, he wrote his brother
Under date of October 22, 1899, he wrote as follows: “As I wrote you I have filed my petition in bankruptcy to shut out the 1st Nat’l and Cemetery notes. Don’t know how it will come out yet. I Avrote you to hold all letters and statements I sent you as strictly confidential and of course you Avill. * * * By wiping out all of these old scores I can get on my feet and do some business somewhere when the tune comes, but Avit-h $40,000 judgments over one’s head can do nothing. Whether I get my discharge or not does not affect any settlements you and I have had or any matters between us. * * * Well, Frank, all I wish to ask is that you be cautious and don’t furnish Johnston, Griggs, Rinaker & Bibb, or any. lawyers any information that they might try to get from you. They would like to keep a judgment against me alive for years, thus catching any real estate they could. Of this matter I could explain more fully if I could see you. If your deposition is called for don’t give it. Wire me here if you need, a quick ansAver on anything of this kind.”
On August 27, 1900, he Avrote: “My bankruptcy case is to be heard September 7 The attorneys in the case have
It is not to be wondered at that a court, Avith these letters before it, should require from the party Avriting them, and from his close relatives, the clearest possible proof that any property once standing in the name of Lewis C. Parker, and afterwards appearing in the name of these relatives, was purchased and paid for in good faith, throwing upon them the burden of proving the entire 'bona fides of the transaction.
The third piece of property involved is the east 120 feet of lot 3, block 12, Cropsey’s addition to the city of Beatrice. This lot, together with two others, constituted the homestead of Frank H. Parker prior to his removal to California. He testifies that some time after leaving Beatrice he sold two of the lots to his mother, Avho conveyed them to Maude Lord Parker; that he reserved lot 3, and that afterAvard, on account of the transactions between himself and his brother, and to settle an account betAveen them, he sold the lot to his brother, but that the deed was made to Maude Lord Parker at his brother’s request. Relating to the making of this deed Lewis C. Parker wrote under date of December 28,1896: “My home
The fourth tract involved is what is known as the “Camden farm,” consisting of 240 acres. Relating to this the court found that Lewis C. Parker was the owner of this land November 12', 1885; that on June 1,1895, he conveyed the same, without consideration, to his cousin, Lysander Cowles; that Cowles, on the 13th of June, 1895, without consideration, conveyed the same to Maude Lord Parker; that these conveyances were merely colorable and were made for the purpose of placing the title in Maude Lord Parker and to defraud the creditors of Lewis C. Parker; that on the 28th of March, 1899, Maude Lord Parker and her husband conveyed said premises to one Susan E. Hooper, a bona-fide purchaser, for over $5,000. It is further shown that a mortgage for $2,500 existed on the land, which was paid and satisfied by Maude Lord Parker prior to her conveyance to Susan E. Hooper. The court further found that the interest of Lewis C. Parker in said land, at the date of its conveyance to Mrs. Hooper, was $1,500; and that Maude Lord Parker is liable to account to plaintiff for said sum, with interest at seven per cent, per annum from March 28, 1899.
The fifth tract is 1.15 acres in the southeast corner of the southeast quarter of section 34 — 4—6, and the north half of lot. 35, except the north 50 feet thereof, of McConnell’s subdivision of the south half of the southeast quarter of section 32. The court found that on August 28,1896, Lewis C. Parker was the owner of this property, and that on that
In Phipps v. Sedgwick, 95 U. S., 3, 9, a personal judgment having been rendered against a married woman in favor of an assignee in bankruptcy on account of property given by her husband, Justice Miller, in reversing that part of the decree, said:' “While the books of reports are full of cases in which real or personal property conveyed to the wife in fraud of the husband’s creditors has been pursued and subjected to the payment of his debts after it had been identified in her 'hands, or in the hands of voluntary grantees or purchasers with notice, we are not aware of any well-considered case of high authority where the pursuit of the property has been abandoned, and a judgment in personam for. its value taken against the wife. * * * The statutes of the different states have gone very far .in this country to modify the peculiar relations of husband and wife, as they existed at common law, in reference to their property. But they have not, except perhaps in Louisiana, gone so far as to recognize the civil-law rule of perfect independence in dealing with
A technical objection is made to the decree from the fact that the plaintiff’s petition, as originally filed, alleged that the conveyance of the home place by Almira T. Parker to Lewis O. and Prank H. Parker was made in the early part of the year 1899, but it is apparent from the whole record that the defendants were not misled by this statement in the petition, and that the trial proceeded upon the theory that such conveyance was made in 1896. At the close of the trial the district court, in exercise of a discretion with which we can not interfere, allowed the plaintiff to insert the year “1896” >in place of the year “1899,” so that the petition as it now stands charges the conveyance to have been made in 1896.
The defendants have pleaded the statute of limitations as a defense to the action. Subdivision e of section 70
Another view of the case leads to the conclusion that the actions were not barred as against the trustee, even as early as the bar of the statute would interpose an obstacle to a suit by the creditors. The filing of the petition in bankruptcy by Lewis C. Parker vested in the federal court complete jurisdiction over his estate. After that date no creditor could bring an. action either to recover his debt or to subject property fraudulently conveyed to its payment. Such actions, by operation of the bankrupt law, are vested in the trustee of the bankrupt estate. As
In Freelander v. Holloman, Fed. Cas. No. 5,081, also reported in 9 N. B. Reg., 331, 334, the question of the application of the statute of limitations was considered by the court. It is there said: “The constitution of the United States conferred upon congress the power to establish a uniform system of bankruptcy throughout the United States; and when congress, in pursuance of this power, passed the bankrupt act, it at once superseded all laws in conflict with it. The bankrupt’s estate, and every thing and right connected with it upon the bankruptcy at once passed under the control and operation of the bankrupt law. After that the rights of those in interest may be contracted or enlarged as congress in its wisdom may provide. This provision in the second section provides that all rights of action barred upon the appointment of the assignee shall remain barred, whether in favor of or against the assignee, and gives both to the assignee and those claiming an adverse interest to any property claimed by the assignee in the adverse possession of others, or claimed by others, to property in the hands or under the control of the assignee, two years in which to commence proceedings in equity or at law for its recovery. This is a separate and independent provision, and has no connection with any state statute on the subject; it may extend or may contract the time provided in the state statutes of limitations. Thus, if at the time of the appointment of the assignee but a few days remained of the time necessary to complete the bar, the time would be extended; or if the statute had just commenced running, and under the state law would have ten years to run, as in case of actions of ejectment to recover real estate, it would be complete within two years.” See also Rock v. Dennett, 155 Mass., 500, 30 N. E. Rep., 171.
To the objection that the creditors whom the trustee represents have not exhausted their legal remedy, and that
A careful review of the record and proceedings in this case leads us to conclude that the decree of the district court is right, with the exception only of the entry of a personal judgment against Maude Lord Parker. We recommend, therefore, that the decree be affirmed, except in so far as it awards a personal judgment in favor of the plaintiff against Maude Lord Parker for the sum of $-, and as to that part of the decree we recommend that it be reversed.'
After the entry of the decree, the defendants took an appeal to this court'and filed a supersedeas bond in the penal sum of $4,200. This bond was approved and filed on June 8, 1901, and was conditioned for the payment of the personal judgment entered against Maude Lord Parker and against waste of the other property involved in the appeal, in case the decree appealed from should be affirmed by this court. On October 21, 1901, the plaintiff applied to the district court for the appointment of a receiver and on November 30, 1901, a receiver was duly appointed by the court, with directions to take charge of the home place, the Moody building, and the east 120 feet of lot 3, block 12, Cropsey’s addition; to rent the same and to hold the rents'subject to the further order of the court. From this order the defendants have appealed.
The defendants object to the appointment of a receiver by the state court upon the ground that the plaintiff is the trustee of the bankrupt estate, and is himself practically a receiver of all property found to belong to that estate. It is also said that unsurmountable difficulties at once become manifest when we stop to analyze the effect of the appointment of a receiver by a state court in a bankruptcy proceeding. The receiver, perforce of the ap
It is clearly established by the evidence taken upon the
We recommend that tbe order appointing a receiver be affirmed so far as it applies to property known as tbe Moody building, and reversed so far as it applies to tbe property known as tbe home place and tbe east 120 feet of lot 3 in block 12 in Cropsey’s addition.
■ By tbe Court: For tbe reasons stated in tbe foregoing opinion, it is ordered that so much of tbe decree of tbe district court as awards tbe plaintiff and appellee a personal judgment against tbe defendant and appellant Maude Lord Parker, be reversed and that tbe decree be in all other matters affirmed. It is further ordered that tbe
Affirmed in part.
June 18, 1903, the following opinion was filed on rehearing. Affirmed, but remanded to ascertain costs of receivership :
Commissioner’s opinion, Department No. 3.
On the former hearing, it was held that the district court erred in entering personal judgment against Maude Lord Parker for the proceeds of the Camden farm received by her, on the sale to an innocent third party, and also in the appointment of a receiver for the property conveyed to her by her husband, the title to which she still retains. It was said in the former opinion, reported ante, page 610, that, “as at present advised, we are inclined to believe that the rule established by Judge Miller [in Phipps v. Sedgwick, 95 U. S., 3], is the proper
Relating to the appointment of a receiver for the property still standing in her name, had that question been presented and determined before the submission of the case upon its merits, we are still convinced that the order making such appointment should be reversed. By agreement of parties, the hearing upon the appointment of a receiver was submitted at the same time with the prin
We recommend, therefore, that the judgment of the district court in the main case be affirmed in all things, as well, also, as the order appointing a receiver for the property.
By the Court: For the reasons stated in the foregoing opinion, it is ordered that the decree of the district court be affirmed, and that the order appointing a receiver for the property held in the name of Maude Lord Parker be also affirmed, but that the case be remanded to the district
U. S. Compiled Statutes, 1901, p. 3452.
U. S. Compiled Statutes, 1901, p. 3426,
U. S. Compiled Statutes, 1901, p. 3431.