Atkins v. Atkins

• Decision Date: 01 December 1885
• Citation: 18 Neb. 474,25 N.W. 724
• Parties: ATKINS v. ATKINS AND ANOTHER.
• Court: Nebraska Supreme Court

18 Neb. 474

25 N.W. 724

ATKINS

v.ATKINS AND ANOTHER.

Supreme Court of Nebraska.

Filed December 1, 1885.

Appeal from Lancaster county.

J. R. Webster and J. H. Foxworthy, for plaintiff.

Mason & Whedon and D. G. Courtnay, for defendants.

MAXWELL, J.

The decree of divorce was affirmed in Atkins v. Atkins, 13 Neb. 271, S. C. 13 N. W. Rep. 285; but the alimony reduced from $5,500 to $3,000, and the allowance for attorney's fees and expenses from $2,000 to $1,000. The alimony thus allowed it seems was not paid; and the decree not being a lien upon the lands of Henry Atkins, the plaintiff was unable to collect the same. In 1883 the legislature passed “An act to provide additional remedies for enforcement and collection of judgments and orders for alimony or maintenance.” The first section provides that “all judgments and orders for payment of alimony or of maintenance, in actions of divorce or maintenance, shall be liens upon property, in like manner as in other actions, and may in the same manner be enforced and collected by execution and proceedings in aid thereof, or other action or process, as other judgments.” An execution was thereupon issued on the decree, and levied upon certain real estate as the property of Henry Atkins, but the legal title to which was in Martha I. Courtnay. The plaintiff thereupon filed a creditors' bill to have the conveyance of said real estate to Mrs. Courtnay declared fraudulent and void as against the plaintiff's rights. The court below found the issues in favor of the plaintiff and rendered a decree accordingly.

Three questions are presented by the record: First, has the plaintiff any dower interest in the lands in controversy? second, where a conveyance is made while an action is pending the effect of which will be to defeat the judgment, on whom is the burden of proof of a valuable consideration? and, third, may the plaintiff avail herself of a remedy created by statute after a decree in her favor?

1. Section 20 of chapter 23 of the Compiled Statutes provides that “a woman being an alien, shall not, on that account, be barred of her dower; and any woman residing out of the state shall be entitled to dower of the lands of her deceased husband, lying in this state, of which her husband died seized; and the same may be assigned to her or recovered by her in like manner as if she and her deceased husband had been residents within this state at the time of his death.” It will be seen that any woman residing out of the state is entitled to dower only in such lands of her deceased husband lying in this state as he was seized of at the time of his death. This section of the statute seems to have been copied from the statute of Michigan on that subject; the language being the same. The proper construction of the section was before the supreme court of that state in Ligare v. Semple, 32 Mich. 438; and it was held that where a husband conveyed lands in that state while his wife was a non-resident thereof she was not entitled to dower therein. In our view this is the proper construction to be given to the language of the statute, and we approve of and adopt it. The plaintiff, therefore, being a nonresident of the state, had no dower interest in any of the lands conveyed by Henry Atkins.

2. The testimony shows that Martha I. Courtnay is the daughter of the plaintiff and Henry Atkins; that the property in question is all the property in this state, so far as is known, possessed by Henry Atkins, and the effect of the transfer is to defeat the plaintiff's decree for alimony. Section 17, c. 32, Comp. St., declares every conveyance or assignment “made with the intent to hinder, delay, or defraud creditors or persons of their lawful rights, damages, forfeitures, debts, or demands,” etc., void. Rights of alimony certainly are included in this provision. Morrison v. Morrison, 49 N. H. 69;Chase v. Chase, 105 Mass. 385;Damon v. Damon, 28 Wis. 512;Draper v. Draper, 68 Ill. 19;Turner v. Turner, 44 Ala. 437. A transfer, made while a suit is pending, of all the debtor's property, is merely a badge of fraud. It may be shown to be valid because the mere pendency of the suit does not make the transfer void. Bump. Fraud. Conv. (3d Ed.) 37, 38. But where all the debtor's property is conveyed, with the apparent intention on the part of a grantor to defeat a judgment about to be recovered against him, and these facts are known to the grantee, the burden of proof rests upon her to show a valuable consideration. Baxter v. Sewell, 3 Md. 334;Spindler v. Atkinson, Id. 409; Hunters v. Waite, 3 Grat. 26;Crossley v. Elworthy, L. R. 12 Eq. 158; Wilson v. Buchanan,...