Dunn v. Bozarth

• Decision Date: 09 November 1899
• Citation: 80 N.W. 811,59 Neb. 244
• Parties: DUNN v. BOZARTH ET AL.
• Court: Nebraska Supreme Court

59 Neb. 244

80 N.W. 811

DUNN

v.BOZARTH ET AL.

Supreme Court of Nebraska.

Nov. 9, 1899.

Syllabus by the Court.

1. The reception of evidence tendered by the defendant after a decision against him on a demurrer to plaintiff's evidence is not error.

2. It is within the discretion of the court to permit a defendant, during the course of the trial, to amend his answer so as to present a new defense.

3. In such case the plaintiff, if not prepared to meet the new issue, may have a continuance of the cause, upon such terms as the court may deem just.

4. On facts set forth in the opinion, held, that

an amendment to the answer was properly made, and became part of the record in the case.

5. This court will not take judicial notice of the rules of practice of the district court. To be considered, such rules must be made a part of the record.

6. Where an amended answer presents inconsistent defenses, the appropriate remedy is to require defendant to elect upon which defense he will proceed. If there be no motion to require an election, the objection that inconsistent defenses are presented will be waived.

7. A husband may transfer property to his wife in payment of a debt due her, provided it is not done with intent to hinder, delay, or defraud his creditors; and, even though he be guilty of fraud in the matter, such transfer will be valid, if the wife was ignorant of, or did not participate in, the fraudulent purpose of her husband.

8. A wife may enforce her just claims against her husband on the same terms, except as to the question of proof, as other creditors. In such case she must show that the debt was genuine, that her purpose was honest, and that she acted in good faith in obtaining payment.

9. Where credit was not obtained on the faith of property conveyed by an insolvent husband to his wife, there is, in an action by a creditor, no basis for an estoppel against her assertion of ownership of such property.

Error to district court, Gage county; Letton, Judge.

Action by Philip Dunn against John C. Bozarth and others. Judgment for defendants, and plaintiff brings error. Affirmed.

J. E. Cobbey and G. M. Johnston, for plaintiff in error.

Geo. A. Murphy and F. O. McGirr, for defendants in error.

SULLIVAN, J.

This action, in substance a creditors' bill, was brought by Philip Dunn against the defendants in error to annul a conveyance alleged to be fraudulent as to creditors, and to subject the property conveyed to the lien of plaintiff's judgment against John C. Bozarth. The district court found generally in favor of the defendants, and rendered a decree dismissing the petition. Among the errors assigned are some relating to questions of practice, which have been so frequently decided that we think it sufficient to say here that they have been considered and overruled.

The events in which this litigation had its origin may be sketched as follows: The Bozarths, who are husband and wife, formerly lived in Illinois. In 1878 Mrs. Bozarth received from her father's estate $3,000, which was turned over to her husband, and mixed with his funds. In 1883 they removed to Nebraska, and settled in Gage county. The same year the land which is the subject of this suit was bought by Bozarth and W. H. Tichnor. The title was taken in the name of the purchasers, but there was at the time an arrangement to the effect that Mrs. Bozarth, who protested against the investment, should be paid, from the proceeds of a resale, the money previously advanced to her husband, or else be given a deed to the property. In 1885 Mrs. Bozarth received $1,000 from the estate of a deceased brother, and in 1890 she received $4,500 from the sale of a farm in Illinois. Both of these sums were turned over to Mr. Bozarth, and used by him in his business. In July, 1893, Tichnor conveyed his interest in the land here in question to John C. Bozarth, who on the 28th day of the same month transferred the title to his wife. In August, 1892, Tichnor purchased for himself and Bozarth a ranch in Kansas, which was incumbered by mortgages to the amount of $9,000. These mortgages, among which was one for $2,000 in favor of the plaintiff, Philip Dunn, became, by the terms of the deed of conveyance, a personal charge against the purchasers. Out of this transaction came eventually a deficiency judgment, which is the basis of this suit. The petition filed by the plaintiff in this action is, except in one particular, in the usual form. The answer denies the material averments of the petition, and alleges that Mrs. Bozarth was the equitable owner of the property from the time of its purchase, in 1883, and that the legal title thereto was held by Bozarth in trust for her.

On the trial of the issues raised by the pleadings, there was a demurrer to plaintiff's evidence on the ground that it was insufficient to warrant a decree in his favor. The court overruled the demurrer, and then, over objection, permitted the defendants to introduce their proofs. This ruling is the subject of complaint, but we do not hesitate to approve it. If it be doubtful whether the plaintiff is, on his own showing,...