Coad v. Dorsey

• Decision Date: 11 July 1914
• Docket Number: 17,677
• Citation: 148 N.W. 155,96 Neb. 612
• Parties: JOHN F. COAD, JR., ET AL., EXECUTORS, APPELLANTS, v. GEORGE W. E. DORSEY ET AL., APPELLEES
• Court: Nebraska Supreme Court

148 N.W. 155

96 Neb. 612

JOHN F. COAD, JR., ET AL., EXECUTORS, APPELLANTS, v. GEORGE W. E. DORSEY ET AL., APPELLEES

No. 17,677

Supreme Court of Nebraska

July 11, 1914

APPEAL from the district court for Dodge county: CONRAD HOLLENBECK JUDGE. Affirmed.

AFFIRMED.

D. L Johnson, Frank Dolezal and S. O. Cotner, for appellants.

E. F Gray and George L. Loomis, contra.

HAMER, J. BARNES, ROSE and SEDGWICK, JJ., not sitting.

OPINION

HAMER, J.

The petition in this case, filed May 18, 1911, seeks to subject certain property alleged to be the property of George W. E. Dorsey, to the payment of a judgment in favor of Mark M. Coad rendered on the 11th day of February, 1905, in the district court for Dodge county, Nebraska, against said Dorsey. The basis of the action is alleged fraud, the inception of which is charged to be May 6, 1893, when said Dorsey made certain conveyances claimed to be in fraud of creditors. At the commencement of this action it is claimed that there was due on said judgment a little more than $ 19,800. It is alleged that the property in question is real and personal property standing in the names of the defendants Laura H. Dorsey and Maria Louise Dorsey. It is charged by the plaintiffs that the conveyances complained of were made to the immediate members of George W. E. Dorsey's family, members either by marriage or blood-relationship. On the 6th day of May, 1893, certain conveyances were filed for record in Dodge county, Nebraska: (a) A mortgage to the Farmers & Merchants National Bank of Fremont conveying about 75 lots and tracts of land in the city of Fremont to secure $ 25,000; (b) a mortgage to Emeline Benton conveying 13 lots and tracts of land in and about the city of Fremont to secure the sum of $ 14,300; (c) a deed conveying to Cornelia Bunnell 46 acres and certain other lots for an alleged consideration of $ 5,800; (d) a deed conveying to the United States National Bank of Omaha certain properties in and about the city of Fremont described by metes and bounds, and certain other lots, for the named consideration of $ 7,000; (e) a deed conveying certain other property alleged to be the remainder of George W. E. Dorsey's real estate in Dodge county to Charles S. Davis of Massachusetts, the consideration, as shown by the deed, being $ 5,000.

It is plaintiffs' contention that, the mortgages to the Farmers & Merchants National Bank and Emeline Benton having been filed for record on the 6th day of May, 1893, and the Rochester Loan & Banking Company, the South Omaha National Bank, and others on the 10th day of May, 1893, having filed attachments on the mortgaged property, therefore the failure occurred at that time. September 25, 1893, the bank filed a petition to foreclose its mortgage, and Emeline Benton filed her cross-petition praying to foreclose upon her mortgage. A decree was taken April 14, 1894, and on the 13th day of June, 1894, the property covered by the bank's mortgage was sold to the bank, and the property covered by the Benton mortgage was sold to Emeline Benton. There was a judgment for a deficiency for $ 9,726.63 in favor of the bank and against Dorsey. There was also a judgment for a deficiency amounting to $ 3,504.57 in favor of Emeline Benton which was also taken against Dorsey. In due time there were sheriff's deeds issued to the purchasers, who took possession of the property thereunder. It appears that George W. E. Dorsey married Emma E. Benton for his first wife. She was the sister of Maria Louise Benton, who married H. H. Dorsey, and who was George W. E. Dorsey's brother. Maria Louise Dorsey (formerly Benton) is one of the defendants in this case. Emeline Benton was the mother of Emma E. Benton, Maria Louise Benton, and Edward A. Benton. Emma E. Dorsey, formerly Emma E. Benton, died March 12, 1903. George W. E. Dorsey on the 19th day of April, 1905, married Laura H. Hodge, as his second wife, who is one of the defendants. The petition in the instant case was filed May 18, 1911. George W. E. Dorsey died June 12, 1911, less than a month after the petition was filed. Cornelia Bunnell was the aunt of Edward A. Benton and the Benton sisters; Jennie A. Gibson is the sister of Emma E. Benton. The Western Realty & Investment Company is a corporation organized and existing under the general laws of Nebraska, having its principal place of business at Fremont, Nebraska. The Farmers & Merchants National Bank of Fremont is a corporation, as is also the Fremont National Bank of Fremont.

The petition alleged the death of Mark M. Coad on the 4th day of January, 1911; the admission of his will to probate by the county court of Dodge county on the 30th day of January 1911; that the plaintiffs are executors appointed by the court on said 30th day of January, 1911, and that they bring the action as executors. The indebtedness of George W. E. Dorsey prior to the 14th day of October, 1893, to the decedent Coad is set up. This proceeding is based on that old indebtedness. On the 18th day of May, 1911, the plaintiffs caused an execution to be levied upon certain real property described as the property of George W. E. Dorsey. A specific description of each parcel is set forth in the petition, but it is not alleged in whose name the property is held. There is the allegation that the property is not held in the name of said George W. E. Dorsey, and that it appears in the name of Maria Louise Dorsey, Emma E. Dorsey, deceased, Jennie A. Gibson, Jennie Christia Benton, and Laura H. Dorsey; that said George W. E. Dorsey has no property or assets outside of the foregoing property subject to levy on execution, and that whatever property and assets he may have he keeps concealed so that the same cannot be found by his creditors; that prior to the 14th day of October, 1893, the said George W. E. Dorsey contrived to place the property then owned by him and such as he might thereafter acquire in secret trust in the names of other persons to hold for him so that his ownership might be concealed; that Laura H. Dorsey, after her marriage to the said George W. E. Dorsey, joined him in his fraudulent schemes of keeping his property concealed from his creditors; that some of the property held by the said Maria Louise Dorsey was conveyed to the said Laura H. Dorsey without any consideration being paid by her to the said Maria Louise Dorsey, and that said property is so held in secret trust as the property of the said George W. E. Dorsey; that all of the aforesaid property so levied upon now stands in different parts and parcels, respectively, in the names of Maria Louise Dorsey, Laura H. Dorsey, and Jennie A. Gibson, in her maiden name of Jennie Christia Benton, and is the property of said George W. E. Dorsey held for him in secret trust. The petition concluded with a prayer that the deeds and will be set aside, and the property declared to be the property of George W. E. Dorsey, and that the persons holding title to the same shall be declared to hold...