74 Neb. 264 | Neb. | 1905
This was an action in the nature of a creditors’ bill instituted by the trustee in bankruptcy - of the ’estate of David Hanlon, a bankrupt, for the purpose of setting aside the conveyance of 480, acres of land situated in Olay county, Nebraska, to Eliza E. Hanlon, wife of the bankrupt, as having been made in fraud of his creditors. The cause was instituted in the district court for Olay county, and is here a second time for review. At the first hearing of the catase in the district court a judgment was rendered in favor of the defendants. This judgment was reviewed on error and reversed by this court. Shreck v. Hanlon, 66 Neb. 451. The issues' in the case are set forth in this opinion, and the questions determined, which are now governed by the rule of “the law of the case,” are that the plaintiff has legal capacity to maintain the action; that the action teas not barred by the statute of limitations when the cause tvas instituted; that it is not a sufficient defense to the action to show that the bankrupt had other property in his possession at the time the transfers were made which was sufficient to satisfy the creditors, if the conveyance was, in fact, fraudulent and made for the purpose of defeating claims of creditors, and at the time of commencing the action the grantor in the conveyance had no property subject to execution, out of which the claims could be made. When the cause was reversed and remanded, in pursuance to the directions of our first opinion, a new trial was had to the court, and plaintiff’s bill was disnlissed as to the quarter section of land occupied by defendants as a homestead, and the conveyance from the husband to the wife of the other two quarter sections was set aside as fraudulent. To reverse this judgment, defendant Eliza E. Hanlon appeals to this court.
“The bankrupt act vests the assignee with title to all property conveyed by the bankrupt in fraud of creditors, and he may proceed to recover the interest of the bankrupt in the property, AAhether any creditor was in position to attack the transfer or not.”
And again in Hood v. Blair State Bank, 3 Neb. (Unof.) 432, it was specifically held that a trustee in bankruptcy, acting for the creditors of the bankrupt, may maintain an action in the nature of a creditors’ bill to set aside a fraudulent conveyance, Avithout reducing the claims of the creditors to judgment. While we are aware that we are not bound by the language and reasoning of this opinion, yet the conclusion reached on this question is in harmony with the doctrine announced in Sheldon v. Parker, supra, and is supported by the holding in Southard v. Benner, 72 N. Y. 424.
The only question then remaining is as to the sufficiency of the evidence to support the judgment. We have made a careful examination of the evidence contained in the bill of exceptions for the purpose of arriving at an independent conclusion on the question of the good faith of the transfer from the husband to the wife. In the first place, the relationship existing’between the parties rendered the transfer of practically all of the available assets of the grantor presumptively fraudulent as to existing creditors. While there is a suggestion in the evidence offered by defendant that David Hanlon owned other property of a personal nature at the time of the transfer, yet nothing is pointed out which it is conceded that he did own, except some sort of a land contract in the state of Colorado, which, is admitted to have been of the value of $60, and AAhich is all tne property that actually passed into the
Q. You say, when you learned that Mr. Hanlon was signing notes as surety, you demanded that the farms be put in your name?
A. I demanded that they were mine, and that I wanted them.
Q. You wanted the farms in your name?
A. I wanted my property.
Q. Because you learned that he was involved?
A. Because I learned that he was signing notes for everybody, and that he was prey for ’most anybody that wanted to pi-ey on him, and I wanted my place to keep my home there. * * *
We think, in view of this testimony, that the evidence is amply sufficient to sustain the judgment of the trial court, and Ave therefore recommend that the judgment of the district court be affirmed.
By the Court: For the reasons given in the above opinion, the judgment of the district court is
Affirmed.