30 Neb. 376 | Neb. | 1890
This action was brought in the court below to set aside, as fraudulent, deeds of transfer from Clark Ward to Sarah J. Ward, his wife, of lots Nos. 23 and 24, in block 38, of the town of Indianola, and lots Nos. 2 and 3 of block 8 of Spring-dale addition to the town of Bartley.
The plaintiffs alleged that on September 5, 1888, they had judgment in the county court of Red Willow county,
The prayer is for the cancellation of the conveyance from Clax’k Ward to his wife, that the lots be sold and the proceeds applied to the satisfaction of plaintiffs’judgment.
The defendants answered, admitting the judgment, the filing of the ti’anscript in the office of the clerk of the district court, aixd the making of the conveyances to the real estate. The defendants for further answer deny that the conveyances described in the petition were given without consideration, but were given for a good, valid, and subsisting consideration, were made in good faith and without any intention of hindering, delaying, or defrauding the plaintiffs or any other creditors; deny that Clark Wax’d is insolvent, and that the conveyances of pei*sonal property named in the petition were dated back, but aver that they
The reply was a general denial.
A trial was had to the court, with a decree for the plaintiffs, setting aside the conveyance, and subjecting the real estate, set forth in the petition, to the payment of plaintiffs’ judgment.
The defendants’ motion for a new trial was overruled and the case was brought to this court for review on eight assignments of error. The first, second, third, and fifth errors are based upon the rulings of the court in admitting evidence claimed to be incompetent and immaterial.
The rule is established in this state, that when a cause is tried to a court without a jury, the admission of incompetent evidence on the trial will not be sufficient grounds for reversing the case. (Willard v. Foster, 24 Neb., 213; Richardson v. Doty, 25 Id., 424.) We have, however, exam-' ined each of the rulings complained of, and find the evidence material and competent.
The fourth assignment of error is that the court erred in allowing the plaintiffs to amend their petition. Upon the trial the plaintiffs offered in evidence the deed from Clark Ward to Sarah J. Ward, for lots 23 and 24, in block 38, in the town of Indianola. The defendants objected to its introduction, as not covering, the property in controversy. The lots were described in the petition as being in block 28, and the court permitted the petition to be amended, by interlineation, by changing from block 28 to block 38. The amendment was in furtherance of justice, and there
The remaining errors assigned are that the judgement is not. sustained by sufficient evidence, the judgment is contrary to law, and error in overruling the plaintiffs’ motion for a new trial.
The defendant Clark Ward was a dealer in agricultural implements at Indianola, and on the 29th day of October, 1887, gave to the plaintiffs his promissory note for $951.30, on which judgment was rendered in the county court of Red Willow county, on September 5, 1888, for $986.60. A transcript of the judgment was filed on the following day in the district court of that county, an execution was issued thereon and placed in the hands of the sheriff, who indorsed the same “ no goods,” and levied the writ upon lots 23 and 24, in block 38, in the town of Indianola, and on the south half of lot 2 and the north half of lot 3, in block 8, Spring Dale addition to the town of Bartley. On the 13th day of August, 1888, Clark Ward conveyed by warranty deed the Indianola lots to Sarah J. Ward, the consideration expressed therein being $800, and on the same day Ward made a quitclaim deed to the lots in the town of Bartley to his wife. Those deeds were filed for record September 6th, 1888. The following instruments were put in evidence by the plaintiffs: A bill of sale from Clark Ward to Sarah J. Ward, dated January 7, 1888, for thirty-four horses and twenty yearlings-and colts; a chattel mortgage from Clark Ward to his wife, dated May 9, 1888, on certain farm machinery, to secure $340; a chattel mortgage from Clark Ward to the First National bank of Indianola, dated September 5, 1888, on his entire stock of agricultural implements, to secure the sum of $2,829.20; a chattel mortgage from Clark Ward to M. D. Welch, dated September 6, 1888, on three hundred head of cattle and his stock of agricultural implements, to secure
Leander Starbuck testified that while the execution was in his hands for service, he asked Clark Ward if he had any property to turn out on the note; he replied that there was personal property on his place, but it was in such shape that the officer could not get it, and that he had no real estate that could be levied on.
W. S. Starr testified, in substance, that he had for collection the claim, on which the judgment was afterwards rendered, and about August 20, 1888, before bringing suit for the plaintiffs in the county court, he had a conversation with Mr. Ward in which Ward proposed to secure the claim by a mortgage on the lots in Bartley and Indianola, stating that they belonged to him individually, were free from incumbrance, and he had no other property which he could turn out to secure the claim. Starr replied that he would not take mortgages wdthout consulting with the plaintiffs, and that he wrote them and they replied not to accept the proposed security. Mr. Starr further testified that Mr. Ward told him that the claim was secured by collateral notes amounting to $1,300, and that if the plaintiffs would accept a mortgage and extend the time for six monthg he thought he would be able to collect the col-laterals and pay by that time. But a small amount of the collateral notes have been paid and the bulk of them are worthless.
Harlow W. Keyes testified that about August the 1st, 1888, Mr. Ward stated to him that he had plenty of property and of ample value to pay all his indebtedness; that about the 14th or 16th of the same month, in another conversation, Mr. Ward said to him : “There is another matter that I desire to counsel with you in regard to. I
Clark Ward, one of the defendants, being examined asa witness by the plaintiffs, testified that Sarah J. Ward Avas his Avife, and that they Avere married in 1861. 0
We have given substantially all the testimony introduced by the plaintiffs. Both of the defendants were called and SAVorn as Avitnesses in their own behalf. It appears from their testimony, that Mrs. Ward has, ever since their marriage, had money and property in her oAvn right, and frequently Mr. Ward borrowed money from her, some of xhich he had repaid. It is undisputed that she inherited from her mother’s estate some land in Illinois, which was sold and the money loaned to her husband.
Each of the defendants testified that the bill of sale given.in January, 1888, was to close up the horse deal, to settle for the twenty-three head of horses and increase, and that the chattel mortgages, and the deed to the Indianola property, were given as security for money borrowed • by Mr. Ward from his wife.
In regard to the lots in Bartley, the undisputed evidence is that they were bought for her and paid for with her money, but through mistake the deed was made to her husband. The quitclaim deed from Mr. Ward to his wife was made to correct this mistake. There is no dispute but what the mortgages given by Ward to the First National Bank of Indianola, and to M. D. Welch, were given in good faith to secure actual bona fide debts. The plaintiffs offered no testimony in rebuttal. If the defend
We have read and scrutinized the evidence in this record with care, and it appears to us that the defendants’ testimony is consistent and reasonable. We are convinced that Mrs. Ward acted in perfect good faith. True, she knew that her husband was being pressed by his creditors, and asked him to secure her. She had a perfect right to make good her claim, notwithstanding she knew she was being preferred to other creditors of her husband, if the security was accepted in good faith, and without any fraudulent purpose on her part. (Hill v. Bowman, 35 Mich., 191; Jordan v. White, 38 Id., 253; Dice v. Irvin, 11 N. E. Rep., 488; Rockford Boot & Shoe Mfg. Co. et al., v. Mastin, 39 N. W. Rep., 219; Miller v. Krueger, 13 Pac. Rep., 641; Chapman v. Summerfield, 14 Id., 235; Cornell v. Gibson, 16 N. E. Rep., 130.)
It is insisted that the conveyances were concealed by Mrs. Ward and kept from the records of the county until after the plaintiffs obtained their judgment, and for that reason they were fraudulent and void; there is no proof that they were purposply Avithheld from record. Besides the note, on which the plaintiffs took judgment, Avas given in October, 1888, long before any of the conveyances complained of were made. It does not appear that the plaintiffs extended credit to Mr. Ward on the faith that he was the owner of the Bartley property. In fact, there is no proof that this property was conveyed to Mr. Ward prior to his becoming the debtor of the plaintiffs. Parlin, Orendorff & Martin Co. therefore Avere not' induced to become creditors by withholding the conveyance from record, nor were they in any manner prejudiced by the failure to record sooner. To create an estoppel the plaintifis must have been misled by the conduct of Mrs. Ward. (Payne v. Wilson, 41 N. W. Rep. [Ia.], 45; Citizens Nat’l Bk. v. Webster, Id., 47.)
Judgment accordingly.