18 N.W. 47 (Neb. 1883), Lane v. Starky

Citation:18 N.W. 47, 15 Neb. 285
Opinion Judge:MAXWELL, J.
Party Name:JOHN T. LANE, PLAINTIFF IN ERROR, v. JACOB STARKEY, DEFENDANT IN ERROR
Attorney:Brown & Ryan Brothers, for plaintiff in error, Hastings & McGintie, for defendant in error,
Judge Panel:MAXWELL, J. COBB, J. concurs. LAKE, CH. J., dissenting. COBB, J. concurs. LAKE LAKE, CH. J., dissenting.
Case Date:December 18, 1883
Court:Supreme Court of Nebraska
 
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Page 47

18 N.W. 47 (Neb. 1883)

15 Neb. 285

JOHN T. LANE, PLAINTIFF IN ERROR,

v.

JACOB STARKEY, DEFENDANT IN ERROR

Supreme Court of Nebraska

December 18, 1883

ERROR to the district court for Saline county. Tried below before MORRIS, J.

REVERSED AND REMANDED.

Brown & Ryan Brothers, for plaintiff in error, reviewed the testimony at length, and cited, inter alia: Temple v. Smith, 13 Ind. 514, and cases cited. Burrill Assignments, § 341. Bump., 89. Glenn v. Glenn, 17 Iowa 501.

Hastings & McGintie, for defendant in error, cited: Thornton v. Hook, 36 Cal. 223. Nichols v. Patten, 18 Me. 231. Fifield v. Gaston, 12 Iowa 218. Clark v. Tennant, 5 Neb. 557. Howe v. Howe, 99 Mass. 89. King v. Moon, 42 Mo. 551. Linn v. Wright, 18 Tex. 317. Waterbury v. Sturtevant, 18 Wend. 353. Kittle v. St. John, 10 Neb. 605. Hedman v. Anderson, 6 Neb. 400. Bump on Fraudulent Conveyances, 563. Atwood v. Impson, 5 C. E. Green, 150. Seymour v. Wilson, 19 N.Y. 417. Shontz v. Brown, 27 Pa. S., 123. Pattison v. Stewart, 6 W. and S., 74.

MAXWELL, J. COBB, J. concurs. LAKE, CH. J., dissenting.

OPINION

[15 Neb. 286] MAXWELL, J.

In July, 1882, one F. M. Woodruff had a store containing general merchandise at Friendville, in this state, and was embarrassed by his liabilities. The total amount of his debts at this time seems to have been about $ 4,000, and the value of the stock the testimony shows to have been from $ 2,700 to $ 4,000, while the book accounts were from $ 300 to $ 1,200. Woodruff was indebted to one Stone, who kept a bank at that place, a little over $ 200 for money loaned. Woodruff's creditors were pressing him very hard at this time, when he sold his entire stock, including the book accounts, to Stone for $ 2,000, which was paid by deducting the amount Woodruff was owing Stone, and by Stone giving his promissory notes for the balance--one of said notes for $ 500, with interest, due in six months; one [15 Neb. 287] note for $ 500, without interest, due in twelve months; one for $ 500, without interest, due in eighteen months, and a note for the remainder, without interest, due in two years. Stone, at the time of the alleged purchase, had full notice of the debts owing by Woodruff, and the testimony clearly shows that one of the objects he had in view in purchasing said goods was to hinder and delay if not defraud the creditors of Woodruff. This transaction took place on the 6th of July, 1882. There is considerable testimony tending to show that Stone did not purchase the goods absolutely, but merely to secure his own claim, and to enable Woodruff to settle with his creditors. This is denied by Stone, but is sustained by the clear weight of testimony, and it certainly seems very strange that a merchant should sell his entire stock for not to exceed one-half of its face value, and receive as payment therefor only long time notes without interest. Certain creditors of Woodruff threatened to attach these goods to secure their claims, and Stone, evidently alarmed, made several efforts to sell the same before the attachments were levied. On the 26th of July, 1882, he was informed that an attachment was about to be levied on the goods in question, and he at once went to a man named Hugh Seed, and offered to sell him the goods for $ 2,500, taking his notes therefor, payable in one, two, three, and four years. Mr. Seed agreed to take the goods on these terms, and the parties went to the store where the goods were kept, and the notes were drawn up ready to be signed, when Seed, evidently anticipating trouble if he purchased the goods, refused to take them and sign the notes. This was between two and three o'clock in the afternoon of the 26th. Stone thereupon sold the goods to one Starkey for $ 2,500, taking his notes therefor, payable to himself. Immediately after this alleged sale, Starkey and the former clerk employed by Woodruff and Stone commenced to invoice the goods, the invoice being completed on the following Sunday. In the forenoon of the 27th of July, [15 Neb. 288] an attachment was levied upon a portion of the goods in question as the property of Woodruff, the amount levied upon being $ 714.95. This action was brought by Starkey against the officer levying the attachment to recover the value...

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