Edwards v. Reid

• Decision Date: 06 March 1894
• Citation: 39 Neb. 645,58 N.W. 202
• Parties: EDWARDS ET AL. v. REID ET AL. BERGGREN ET AL. v. REID ET AL.
• Court: Nebraska Supreme Court

39 Neb. 645

58 N.W. 202

EDWARDS ET AL.

v.REID ET AL.

BERGGREN ET AL.

v.REID ET AL.

Supreme Court of Nebraska.

March 6, 1894.

Syllabus by the Court.

1. Two things must concur, to show an abandonment of a homestead, viz. an intention to abandon, and actual abandonment. Eckman v. Scott, 52 N. W. 822, 34 Neb. 817, adhered to.

2. The rule is that, to establish abandonment of a homestead, the evidence must show, not only that the party removed from the homestead, but that he did so with the intention of not returning, or, after such removal, he formed the intention of remaining away.

3. A man and wife removed from their farm (owned by the wife) to a neighboring town, where they lived for some years in a rented house, and in which the man pursued the business of shoemaking. They left a son in charge of the farm; and the greater part of their household goods, and all their stock and farming implements, also remained on the farm. The wife divided her time between her place of abode in town and the farm; keeping general supervision of the latter, and doing there the laundry work, and part of the cooking for herself and husband. The man died, and the widow sold the farm. In a suit by her creditors to set aside her conveyance as fraudulent, held that, as the evidence did not show that the man and wife left the farm with the intention of not returning, their removal to and residence in town did not work an abandonment of the homestead.

4. Removing from a homestead, and residing temporarily elsewhere, for the purpose of business, pleasure, or health, will not work an abandonment of a homestead, unless, coupled with such removal, is the intention not to return, or, after removal, the intention is formed of remaining away.

5. To avoid a sale upon the ground that it is fraudulent as to creditors, the purchaser must have notice of such facts tending to show such fraudulent purpose as would put a person of ordinary prudence on inquiry. Temple v. Smith, 13 Neb. 513, 14 N. W. 527, adhered to.

6. In a suit by a creditor to set aside a conveyance of real estate on the ground that the same was made to defraud him, to the knowledge of the defendant, the court, without either a general or a special finding against such defendant, entered a decree annulling the conveyance, as prayed. Held, that it was erroneous to pronounce a decree annulling the defendant's title without either a general or a special finding against him. Section 297, Code Civ. Proc. Foster v. Devinney, 28 Neb. 416, 44 N. W. 479, adhered to.

Appeal from district court, Saunders county; Bates, Judge.

Separate actions, in the nature of a creditors' bill, by Edwards & Castle and Olof Berggren against Sarah A. Reid and others. The two actions were consolidated, and tried together. There was decree for complainants, and defendants appeal. Reversed.

N. H. Bell and M. B. Reese, for appellants.

Simpson & Sornborger, for appellees.

RAGAN, C.

The evidence before us shows: That in the year 1881 one Alfred Reid purchased the W. 1/2 of S. E. 1/4, section 25, in township 15 N. and range 7 W., in Saunders county, Neb., and about the year 1884 moved upon, improved, and began farming and occupying, said land, as the homestead of himself and family. Some time after this, he conveyed the land to his wife, Sarah A. Reid. That he was a shoemaker by occupation, and being unable, on account of poor health, to do the work on the farm, about the year 1886 he rented a building in Wahoo, to which he and his wife removed a part of their household goods, and used this building as their temporary home and Mr. Reid's shoe shop. At the time Mr. and Mrs. Reid came to Wahoo, they left their farm in charge of a son, and left also, on the farm, all their stock and farming utensils, and the greater part of their household goods. Mrs. Reid divided her time between the farm and her abode in Wahoo, a few miles distant. She did the laundry work, and some of the cooking, for herself and husband, on the farm. Thus matters stood until August, 1887, when Mr. Reid died. On November 1, 1887, Mrs. Reid sold and conveyed the farm to her daughter, Mrs. Starks; the consideration being $600, evidenced by two notes of Mrs. Starks of $300 each, the assumption by her of mortgages on the land amounting to $1,200, and the promise to provide her mother with a home, she being then about 52 years of age. In February, 1889, Mrs. Reid sold her property on the farm, and the daughter rented the land for that year for a cash rent. On January 30, 1890, Mrs. Starks and her husband sold and conveyed the land to one Krailick. On July 27, 1889, one Olof Berggren recovered a judgment against Mrs. Reid and one C. M. Frey, her son by a former husband, for $90.95. A transcript of this judgment was filed and docketed in the office of the clerk of the district court of Saunders county, on January 13, 1890. November 1, 1887, Edwards & Castle recovered a judgment in the county court of Saunders county against Mrs. Reid for $80.80, and on February 14, 1888, a transcript of this judgment was filed and docketed in the office of the clerk of the district court of Saunders county. Executions having been issued and returned unsatisfied, Edwards & Castle and Berggren in March, 1890, each brought suit in equity against Sarah A. Reid, Abbie A. Starks, and Joseph Krailick, alleging that the conveyance from Mrs. Reid to Mrs. Starks was made and received without consideration, and for the fraudulent purpose of hindering and delaying Mrs. Reid's creditors in the collection of their debts, and alleging that Krailick's interest in the land was acquired with knowledge of Mrs. Reid's interest in the land, and the existence of plaintiffs' judgments. The answer of the parties made defendants, and the replies thereto, made the following issues: (1) Whether the conveyance from Mrs. Reid to Mrs. Starks was made and accepted in good faith, and for a valuable consideration; (2) whether Krailick was an innocent purchaser; (3) whether the land at the time it was conveyed to Mrs. Starks by Mrs. Reid was the latter's homestead. The court found and decreed the issues for the complainants, the cases having been consolidated and tried together, and the defendants below bring the case here on appeal.

1. Was the conveyance from Mrs. Reid to Mrs. Starks made and accepted without consideration, and with a fraudulent purpose?

As to the consideration: The evidence is that Mrs. Starks assumed $1,200 of incumbrances on the land, gave her notes for $600, and promised to provide the grantor a home. The land was worth at the time about $2,600. This was, as between the parties, a good consideration; or, to express it differently, it was not a conveyance wholly without consideration.

As to the intent with which this conveyance was made and accepted: For the purposes of this opinion, we may disregard Mrs. Reid, and her intentions in making the conveyance. If her purpose was fraudulent,--and we do not wish to be understood as saying that this record discloses that it was,--still, to invalidate the conveyance, Mrs. Reid's fraudulent purpose and intent must have been known to and participated in by Mrs. Starks. Hedman v. Anderson, 6 Neb 393;Smith v. Schmitz, 10 Neb. 600, 7 N. W. 329;Keith Bros. v. Heffelfinger, 12 Neb. 497, 11 N. W. 749;Burley v. Marsh, 11 Neb. 291, 9 N. W. 48;Crabb v. Morrissey, 31 Neb. 161, 47 Neb. 697; Iron Co. v. Waters, 50 Mich. 13, 14 N. W. 679. Or Mrs. Starks must have had notice of such facts tending to show...