Blair State Bank v. V. Bunn
| Decision Date | 06 March 1901 |
| Docket Number | 9,403 |
| Parties | BLAIR STATE BANK, APPELLANT v. V. BUNN ET AL., APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Washington county. Heard below before DICKINSON, J. Affirmed.
AFFIRMED.
Osborn & Aye, for appellant.
D. W Merrow, C. C. Wright, H. E. Burnam and Walton & Mummert contra.
In an action at law the appellant, in January, 1894, obtained a judgment for over $ 7,000 against the appellee, V. Bunn, upon which there was realized and credited the sum of about $ 2,000. Thereafter, and in February, 1895, an action in equity was begun by the appellant in the nature of a creditor's bill, for the purpose of having declared fraudulent and void, as to it, certain transfers of property, both real and personal, made by the judgment debtor, V. Bunn, and to subject such property to the payment of said judgment. After trial, in which all necessary parties were brought, issues joined, and the submission of a great deal of evidence, the trial court found on the issues in favor of the appellees, and a judgment was rendered in their favor, from which the appellant appeals to this court.
The more important features of the case, in which are included the essential elements of the controversy, as disclosed by the record, appear to be as follows: The said Bunn, being the owner of considerable property and engaged in farming on an extensive scale, was, at the time of bringing the law action first mentioned, indebted to divers persons in various sums of money, including the plaintiff in that action who was the heaviest of his creditors. In the law action the appellant caused to be issued a writ of attachment on the ground of alleged fraud on the part of the defendant as to the disposition of his property, which was levied on the property of the defendant in that action, now the judgment debtor. A motion to dissolve the attachment, supported by affidavits, was interposed by the defendant, which upon hearing was sustained and the attachment dissolved, from which order of dissolution no appeal or other proceeding was taken, and the same thereupon became final. Immediately after the dissolution of the attachment the defendant executed several conveyances, by which his other creditors were secured, and in which conveyances was included all his property, both real and personal, save a certain quarter section of land, which, after judgment in the law action, was levied upon and sold to satisfy such judgment. The present proceedings were thereafter instituted in an attempt to reach the property conveyed to the other creditors as aforesaid.
The evidence in the equity action is without serious or substantial conflict or contradiction, and the only important question arising thereon is as to the proper deductions to be made therefrom. It is practically conceded that the transfers complained of were made to secure and satisfy bona fide debts owing by the grantor, but it is insisted that such transfers were made for the purpose also of defrauding, delaying or hindering the appellant in the collection of its debt, in which fraudulent and unlawful purpose the grantees participated, thereby rendering such conveyances fraudulent and invalid as to the appellant under the provisions of section 17, chapter 32, Compiled Statutes, entitled "Frauds." The section just referred to provides that conveyances of the kind under consideration, made with intent to hinder, delay or defraud creditors, or persons of their lawful rights, debts or demands, shall be void as against the person so hindered, delayed or defrauded. It is earnestly insisted that in the present case, under the evidence, it is shown that the preferred creditors were not acting in good faith for the sole purpose of securing their past debts, but were engaged in a preconcerted effort, in conjunction with the judgment debtor, to so cover up all his property as to keep it under his and the preferred creditors' control, and prevent appellant from collecting its judgment, all in fraud of its rights as a judgment creditor. We are unable to make extended reference to the evidence in the case, and content ourselves by saying that in the examination which we have been enabled to make we find no violation of the provisions of the statute referred to, nor of any rule of law giving to a debtor, under certain circumstances, when done in good faith, the right to secure some of his creditors to the exclusion of others, even though the inevitable effect of the preference is to delay or hinder other creditors of the same debtor in the collection of their just demands. It is fairly well established by the evidence that the several transfers and conveyances of which complaint is made were to secure or satisfy actual and bona fide pre-existing debts, and that the security taken, or the property transferred, was not so disproportionate in value as to raise any presumption of fraud by reason of such transfer.
The right of a debtor to prefer certain creditors to the exclusion of others, if done in good faith, being admitted, it is required of us only to examine into the case with a view of ascertaining whether, in the transactions entered into in making such preference, there has been any violation of law which would invalidate the contract or agreement by which the same was accomplished. It appears that all the chattel property of the debtor was mortgaged to secure debts then existing, and that such mortgages were, in the manner provided by law, foreclosed, and the property sold to satisfy the debts for which the mortgages were given. Certain real estate was sold and transferred in payment of other debts then owing by the grantor. It thus appears that all of the property of the debtor, which is sought by these proceedings to be reached and applied to the satisfaction of appellant's judgment, has actually been sold and transferred from the debtor in the payment of just obligations owing by him.
A deed of conveyance was made by the debtor to one of his creditors in which certain other debts secured by mortgage on the same land were assumed by the grantee. It is insisted that because the deed was signed by the grantor alone, and acknowledged a day prior to the day the mortgages were executed, that delivery must be presumed to have been made on the day of its date, and that the mortgages of the subsequent date conveyed no title, and were, therefore, void. A fair construction of the different transactions leads us to the conclusion that the deed was not delivered until after the execution of the mortgages securing the debts assumed by the grantee, and that the deed, when delivered, was subject to such mortgages. This was the grantee's view of the transaction, and the debts which the mortgages secured were specifically assumed by him as a part of the consideration. The land was a homestead. The wife of the grantor did not sign the deed until the day subsequent to its date, and on the same day the mortgages were executed securing other debts assumed by the grantee. The grantee testifies in effect, that the deed was not delivered until so acknowledged, when he had it filed and recorded. ...
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