Dufrene v. Anderson

• Decision Date: 17 April 1902
• Parties: DUFRENE v. ANDERSON ET AL.
• Court: Nebraska Supreme Court

2 Neb. [Unof.] 813

90 N.W. 221

DUFRENE

v.ANDERSON ET AL.

Supreme Court of Nebraska.

April 17, 1902.

Commissioners' opinion. Department No. 3. Error to district court, Douglas county; Fawcett, Judge.

“Not to be officially reported.”

Action by Elizabeth Dufrene, executrix, against Leverett M. Anderson and others. Judgment for defendants. Plaintiff brings error. Affirmed.B. N. Robertson, for plaintiff in error.

W. A. Saunders, for defendants in error.

AMES, C.

This is an action in the nature of a creditors' bill seeking to set aside a conveyance of real estate as having been made in fraud of creditors. In 1892 the defendants in error L. M. Anderson and his wife, Ella S. Anderson, became indebted to the testator of the plaintiff, Alfred R. Dufrene, upon a note and mortgage upon certain lands in Douglas county. The petition alleges that in November, 1896, the mortgaged property was sold under a decree of foreclosure, and a personal judgment for a deficiency of the proceeds to pay the amount of the decree rendered against the mortgagors. Dufrene died testate in December, 1898, and in May, 1899, the judgment was revived in the name of the plaintiff in error as the executrix of his will. On the day following the revivor an execution was issued and returned, reciting that no goods or chattels or lands or tenements could be found in the county in the possession of or the title to which was in the defendant in the writ, but showing a levy upon the lots in controversy, the possession and title of record of which were in the defendant in error Arthur L. Anderson, and immediately thereafter this suit was begun. With respect to this property it was alleged that it was conveyed by Leverett M. Anderson and his wife to their son, the defendant Arthur L. Anderson, by a deed bearing date October 10, 1894, and made of record January 14, 1896, and it was averred that the deed was without consideration, and was executed for the purpose of hindering, delaying, and defrauding the creditors of the grantor, and particularly the plaintiff and her testator, but it was not alleged that the grantee had knowledge of that purpose, or that the grantor was insolvent at that time, but he was alleged so to be at the date of the beginning of this action; but it is not shown when knowledge of a fraudulent intent, if any, on the part of the defendants, or either of them, came to the knowledge of the plaintiff or her testator, nor was any fact pleaded indicating in what such an intent consisted or how it was evidenced.

The mere charge that the conveyance was fraudulent, without any allegation of insolvency at the time it was made, or of any other circumstance showing how it could at...