Dufrene v. Anderson
| Decision Date | 08 January 1903 |
| Citation | 93 N.W. 139,67 Neb. 136 |
| Parties | DUFRENE v. ANDERSON ET AL. |
| Court | Nebraska Supreme Court |
1. On the facts stated, a conveyance of real estate by a debtor is held to have been in fraud of his creditors.
2. In an action to set aside such conveyance, the financial condition of the grantor at the time of making the conveyance is merely an evidential fact bearing on the question of fraud, and need not be pleaded; aliter, his financial condition at the time of the commencement of such action.
3. The defense of the statute of limitations is waived unless interposed by demurrer or by sufficient averments in the answer.
4. An averment in the answer, couched in the language of a general demurrer to the petition, is a bare conclusion of law, and insufficient to interpose the defense of the statute of limitations.
Commissioners' opinion. Department No. 3. Error to district court, Douglas county; Fawcett, Judge.
Action by Elizabeth Dufrene, executrix of Alfred R. Dufrene, deceased, against Leverett M. Anderson and others. Judgment for defendants, and plaintiff brings error. Reversed.Bernard M. Robertson, for plaintiff in error.
W. A. Saunders, for defendants in error.
On the 10th day of October, 1894, the defendant L. M. Anderson executed two conveyances, covering separate parcels of real estate belonging to him, to his son, the defendant Arthur L. Anderson. These conveyances were not filed for record until January 14, 1896. At and prior to the date of such conveyances the grantor was indebted to Alfred R. Dufrene on a note secured by mortgage on other real estate. The mortgage was foreclosed in 1895, and a deficiency judgment rendered in favor of the mortgagee and against the mortgagor in 1896 for $1,800. Afterward the mortgagee died, and in 1899 the judgment was revived in the name of his executrix, the plaintiff in this case. Afterward, on the 6th day of May, 1899, an execution issued on the judgment; and there being no personal property belonging to the execution defendant, nor real estate to which he held the legal title, whereon to levy, it was levied on the real estate, the legal title to which had been transferred by one of the conveyances hereinbefore mentioned, and still stood in the name of the grantee under that conveyance. Afterward, on the 6th day of May, 1899, the plaintiff brought this action against the defendants named, and others having or claiming some interest in the property levied upon, to set aside the conveyance thereof hereinbefore mentioned, as having been made in fraud of the creditors of the grantor. The answers deny the charge of fraud, and aver that the conveyance was upon a valuable consideration. One of the answers (that of the grantee) avers that the consideration was the cancellation of a debt for $350, with interest from the 15th day of September, 1891, to the date of conveyance, at 10 per cent. per annum, due from the grantor to the grantee. The answers also contain the statement “that the facts stated in said petition do not constitute a cause of action.” The replies to the answers may be said to amount to a general denial. The court found in favor of the defendants, and decreed accordingly. The plaintiff brings error. This is the second hearing before this department. The former opinion, affirming the decree of the district court, is reported in 90 N. W. 221. A further examination of the record in this case satisfies us that our former conclusion was wrong, and that the decree of the district court ought to be reversed.
The conveyance assailed was from father to son. It was withheld from record more than a year after it was executed. It is conclusively established that at the time the conveyance was made the father was heavily indebted. It is true that all of his indebtedness, save one claim, amounting to about $126, was secured by mortgages on real estate other than that in controversy But the interest on the indebtedness and the taxes on the real estate were accumulating and delinquent, and upon a foreclosure of the mortgages the amount realized on the sales of the property was not sufficient to satisfy the decrees. Seven witnesses testified as to the value of real estate in controversy. Not one estimated its value at the time of the conveyance in question at less than $4,200, save the grantee, whose estimate was $2,500. But aside from the fact that he knew the property and held the legal title to it, nothing is shown to entitle his opinion in the matter to weight. Opposed to his testimony is that of six witnesses acquainted with the property, and competent to form an opinion as to its value. All of them, save the grantor, whose estimate of the value was $8,000 when the conveyance was made, were disinterested. Taking into account the interest of the grantee, and the facts hereinbefore mentioned affecting the weight of his opinion, a finding that the property was worth but $2,500 would be against such an overwhelming weight of evidence that it could not be sustained. We think, then, that $4,200 is the lowest figure at which the value of the property at the time of the conveyance would be placed. It was subject to an apparent tax lien of some $1,600, which was subsequently adjudged invalid. The other property...
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Vielehr v. Malone
...it will be liberally construed.' Latenser v. Misner, supra. But, in regard to the statute of limitations, we said in Dufrene v. Anderson, 67 Neb. 136, 93 N.W. 139, 141, in discussing this question: 'We have not overlooked the cases holding that, where the petition fails to state a cause of ......
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Dunlop Tire & Rubber Corp. v. Ryan
...face that the cause of action stated therein is barred by the statute of limitations is subject to general demurrer. See, Dufrene v. Anderson, 67 Neb. 136, 93 N.W. 139; Brainard v. Hall, 137 Neb. 491, 289 N.W. 845; Vielehr v. Malone, 158 Neb. 436, 63 N.W.2d The theory of the plaintiff on th......