Bender v. Kingman

• Decision Date: 10 July 1901
• Citation: 62 Neb. 469,87 N.W. 142
• Parties: BENDER v. KINGMAN ET AL.
• Court: Nebraska Supreme Court

62 Neb. 469

87 N.W. 142

BENDER

v.KINGMAN ET AL.

Supreme Court of Nebraska.

July 10, 1901.

Syllabus by the Court.

1. While, by reason of section 19, c. 32, Comp St., the intent of the vendor in an alleged fraudulent conveyance is always a question of fact, it does not follow that such question of fact must in every case be left to the jury.

2. Where from uncontradicted evidence all reasonable men must conclude that the vendor's purpose in making a sale was to hinder creditors, and that the purchaser had notice of such intent prior to parting with the consideration, it is proper for the court to direct a verdict.

3. Admissions of the vendor in the presence of the vendee, before the latter parted with the consideration, as to the intent with which the sale was made, are competent, though coming after the vendee had taken possession, since they tend to show notice of the vendor's intent to the vendee.

Error to district court, Thurston county; Evans, Judge.

Action by Philip H. Bender against Kingman & Co. and others. Verdict for defendants, and plaintiff brings error. Affirmed.Geo. G. Bowman, A. G. Strong, and M. C. Joy, for plaintiff in error.

James H. McIntosh, for defendants in error.

POUND, C.

This is an action of replevin, involving possession of a stock of agricultural implements taken by defendants under attachments against Weiser Bros., and claimed by plaintiff as their vendee. The facts with respect to the transfer from Weiser Bros. to Bender are sufficiently set forth in the opinion in Kingman v. Weiser, 48 Neb. 834, 67 N. W. 941. The trial court directed a verdict for the defendants, and such action,and the receiving of testimony as to certain admissions made by Weiser Bros., are assigned as error.

Under section 19, c. 32, Comp. St., it is undoubtedly true that the intent of the vendor in an alleged fraudulent conveyance is always a question of fact. That is, certain circumstances appearing, it does not follow, as a matter of law, that there was fraudulent intent, but an actual intention to hinder, delay, or defraud must have had a substantive existence in the mind of the vendor; and, if there was no such intent, the law will not make one from his acts. But this question of fact differs in no wise from any other, so far as the relative functions of the court and of the jury are concerned. Where, upon any issue of fact, the uncontradicted evidence is such that all reasonable men must reach the same conclusion, there is no need of submitting the issue to a jury, and a verdict may be directed. Elliott v. Lead Co., 53 Neb. 458, 73 N. W. 948. The evidence as to the intent of Weiser Bros. in making the sale was the same as that set forth in Kingman v. Weiser, supra, and could leave no doubt in the mind of any one that they intended to hinder and delay their creditors, and sold the property for that purpose. It was no less clear from the plaintiff's own...