Clemens v. Brillhart

• Decision Date: 24 March 1885
• Citation: 22 N.W. 779,17 Neb. 335
• Parties: CLEMENS v. BRILLHART AND OTHERS.
• Court: Nebraska Supreme Court

17 Neb. 335

22 N.W. 779

CLEMENS

v.BRILLHART AND OTHERS.

Supreme Court of Nebraska.

Filed March 24, 1885.

Appeal from Johnson county.

T. Appleget & Son, for plaintiff.

S. P. Davidson, for defendant.

MAXWELL, J.

This is an action to foreclose a mortgage executed by Jacob S. Brillhart to Andrew J. Brillhart on the twenty-eighth day of April, 1877, upon certain real estate, to secure the payment of eight promissory notes, of $200 each, with interest at 8 per cent. George A. Brillhart was permitted to intervene, and filed an answer, wherein he alleges that in January, 1884, he commenced an action by attachment against Jacob S. Brillhart to recover the sum of $2,426.20, and interest, and that the attachment was levied upon the mortgaged premises; that the mortgage in question was given without consideration, and for the purpose of defrauding the intervenor. On the trial of the cause, the court found that the lien of the attachment was superior to that of the mortgage, and rendered a decree accordingly. The plaintiff appeals. The testimony fails to show that the plaintiff is a bona fide purchaser of the notes in question, and therefore he possesses no greater rights therein than the payee of the notes. Where there are fraudulent transfers of property to prevent the collecting of debts, it is the duty of the court to ascertain the date and manner of the creation of the several debts, in order to determine whether the transfers were made before or after the debts were incurred, or with a view to the creation of the debts.

It appears from the record that the mortgagee is a son of the mortgagor, and is of weak mental capacity; that in the year 1869 the mortgagor was running a steam flouring-mill at Fairbury, Illinois; that the son was fireman, and continued so employed until the fall or winter of 1871, when the mortgagor was indebted to him in the sum of $500, for which he gave him his promissory note; that afterwards he went to Arkansas and operated a saw-mill for a few years, where the son assisted him to the amount of wages agreed upon. Afterwards, to secure this indebtedness, the mortgage in question was made. The indebtedness to George A. Brillhart accrued partly in 1869, “part in 1870, and the balance in 1871.” He fails to show what part accrued in these several years. For aught that appears, the greater part of it may have accrued in 1871. He is attacking the validity of the transaction, and the burden of proof is upon him. Hamilton v. Bishop, 22 Iowa, 211;Pratt v. Pratt, 96 Ill. 184;Darling v. Hurst, 39 Mich. 765;Wilds v. Bogan, 55 Ind. 331;Hathaway v. Brown, 18 Minn. 414, (Gil. 373;)Miller v. Finn, 1 Neb. 254.

Fraud will never be imputed where the circumstances and facts upon which it is predicated may consist with honesty and purity of intentions. Bump, Fraud. Conv. (3d Ed.) 603, and cases cited. Applying this rule to the testimony in this case, we find that from 1869 to 1871 Jacob S. Brillhart was doing considerable business. It is claimed that he was insolvent during those years. There is no proof or claim that the son did not render the services as alleged, nor that the amount of...