28 Neb. 479 | Neb. | 1890
This action was instituted in the district court of Douglas county and was in the nature of a creditor’s bill. It was alleged in the petition that in the year 1868 James W. Davis became indebted to the plaintiff, and that upon such indebtedness plaintiff recovered a judgment against the said Davis for the sum of $3,069.70, said judgment having been rendei’ed by the district court of Douglas county; that the judgment became dormant and that the same was revived
The defendants, James W. and Elizabeth Davis, filed separate answers, denying all the allegations of the petition, excepting that they were husband and wife; that the deeds were executed to Elizabeth Davis and recorded at the time alleged in the petition; that the improvements made upon the real estate were made by James W. Davis in the year 1868, and also pleading the statute of limitations.
To these answers plaintiff filed a reply, realleging the fraudulent character of the deed to Elizabeth Davis; denying that the record of the deed imparted notice to him; denying knowledge that the real estate was the property of the said James W. Davis, and alleging that aside from what was shown by the records of Douglas county the fraud was discovered and made known to the plaintiff within one year previous to the commencement of the action, and not before, and that the cause of action accrued upon the discovery of the fraud.
. The other defendants filed separate answers alleging their purchase of the portions of the real estate occupied by them; that the same was made in good faith and for value, and without any knowledge of plaintiff’s alleged rights under his judgment.
The cause was tried to the district court, the trial resulting in a general finding in favor of all the defendants, and a decree dismissing plaintiff’s petition. From this decree plaintiff appeals.
There is no question but that the plaintiff’s right to apply the property to the payment of his claim was barred by the statute of limitations if the statute began to run upon the filing for record of the deed by which the real estate was finally conveyed to Mrs. Davis, for by sec. 12 of the Civil Code the statutory limit is four years after the discovery of the fraud. This section of the Code has been construed by this court, so far as its .application to the question involved in this case is concerned, in Hellman v. Davis, 24 Neb., 793; Parker v. Kuhn, 21 Id., 413; Blake v. Chambers, 4 Id., 90. By these cases it is pretty well settled in this state that while the person against whom a fraud has been perpetrated bas four years from the discovery of the fraud in which to commence his suit, yet the fraud will be deemed to have been discovered when such facts are known, either actually or constructively, as would amount to knowledge) or which would naturally suggest such inquiries as, if followed up, would lead to such knowledge. This being the rule, we are led to inquire whether plaintiff is entitled to pursue his action to a favorable decree, as having discovered the fraud within four years prior to its commencement, or whether by lapse of time his right to relief has become barred.
The land which it is sought to subject to the payment of plaintiff’s judgment is described as the north half of the northwest quarter of section 35, township 15 north, range 12 east, in Douglas county. It clearly appears that the conveyances were made and placed on record at a time when defendant was known to be insolvent, or at least just prior'thereto; that defendant resided upon the land and made improvements thereon, and that plaintiff knew in the year 1876, or prior thereto, of such residence; that it was claimed by some of the family and was charged
The decree of the district court is affirmed.
Judgment affirmed.