Barnes v. Cox

• Decision Date: 08 June 1899
• Docket Number: 8893
• Citation: 79 N.W. 550,58 Neb. 675
• Parties: O. H. BARNES, APPELLANT, v. WILLIAM R. COX ET AL., APPELLEES
• Court: Nebraska Supreme Court

79 N.W. 550

58 Neb. 675

O. H. BARNES, APPELLANT, v. WILLIAM R. COX ET AL., APPELLEES

No. 8893

Supreme Court of Nebraska

June 8, 1899

APPEAL from the district court of Pierce county. Heard below before ROBINSON, J. Affirmed.

AFFIRMED.

Powers & Hays, W. W. Quivey, and Benjamin Lindsay, for appellant.

Robertson & Wigton, contra.

OPINION

SULLIVAN, J.

On March 17, 1890, O. H. Barnes sued William R. Cox in the district court of Pierce county upon a judgment for the sum of $ 1,650 recovered in the previous January in one of the courts of the state of Texas. The action was aided by attachment, the writ being levied upon the northwest quarter of section 31, and an undivided half of the southeast quarter of section 29, in township 28 north, range 4 west of the 6th P. M., in Pierce county. In March, 1892, Barnes obtained judgment in the action and an order for the sale of the attached property. Under this order the land in section 29 was sold to the plaintiff. There were no bidders for the land in section 31. Afterwards Barnes instituted this suit against the appellees, alleging in his petition that there was of record in the office of the county clerk of Pierce county a deed conveying said land from William R. Cox to John L. Cox; that, although such deed was fraudulent and void as to creditors, it constituted a cloud upon the owner's title, deterred bidders, obstructed the sale, and hindered plaintiff in obtaining satisfaction of his judgment. John L Cox answered, asserting ownership of the land, but denying that the conveyance by which he acquired title was made to hinder, delay, or defraud his grantor's creditors. He asked that his title to the entire tract upon which the attachment had been levied be quieted and confirmed in him. The trial resulted in a decree dismissing the petition and awarding the affirmative relief for which the answer prayed. The plaintiff brings the record here for review by appeal.

The evidence in the bill of exceptions would warrant the court in finding the following facts: In 1883 William R. Cox, who resides in the state of New York, visited Pierce county with his son, the defendant John L. Cox, and while there bought the land in section 29, taking the title to himself. The purchase price was $ 2,000. At the same time the son secured a timber claim, for which the father paid $ 1,000. The following year the elder Cox purchased the land in section 31, paying therefor the sum of $ 1,500. It was understood that the several tracts were purchased for the benefit of John L. Cox and that the title would be transferred to him as soon as he should repay to his father the money expended together with interest thereon at the rate of six per cent. The son took immediate possession of the property, lived on it, improved part of it, paid the taxes, and received to his own use all of the profits. Between November 12, 1886, and May 4, 1888, Ida E. Cox, wife of John L. Cox, received from the executor of her father's estate $ 3,408.52, which sum was paid...