Forsyth v. Easterday

• Decision Date: 19 February 1902
• Docket Number: 10,198
• Citation: 89 N.W. 407,63 Neb. 887
• Parties: W. P. FORSYTH, APPELLEE, v. MARTIN V. EASTERDAY ET AL. APPELLANTS
• Court: Nebraska Supreme Court

89 N.W. 407

63 Neb. 887

W. P. FORSYTH, APPELLEE, v. MARTIN V. EASTERDAY ET AL. APPELLANTS

No. 10,198

Supreme Court of Nebraska

February 19, 1902

APPEAL from the district court for Johnson county. Heard below before STULL, J. Affirmed.

AFFIRMED.

Samuel P. Davidson, for appellants.

Lewis C. Chapman and F. L. Dinsmore, contra.

OPINION

SEDGWICK, J.

The plaintiff and appellee commenced this action, in the nature of a creditors' bill, to subject certain property standing in the name of Margaret J. Easterday to the payment of a judgment held by the plaintiff against Martin V Easterday. It is alleged in the petition that the judgment was entered in the county court of Johnson county, Nebraska at the January term, and that said judgment was transcripted to the office of the clerk of the district court January 27, 1898; that execution was issued thereon January 28th, and was returned wholly unsatisfied January 29th, and that there is now due the plaintiff on said judgment the sum of $ 900; that Martin V. Easterday is wholly insolvent. It is further alleged that in October, 1891, Martin V. Easterday owned in his own right certain lands in Johnson county, Nebraska, and that he exchanged said lands with one Gremmitt, the consideration for said exchange being property owned by Gremmitt in Loup county, Nebraska; that in October, 1892, Easterday exchanged the Loup county lands with one Ellsworth for the property in Tecumseh which it is sought to reach by these proceedings; and that the deed to the Tecumseh property was made to the defendant, Margaret J. Easterday. The plaintiff further alleges that he is a resident of California; that he does not know Ellsworth, and that he had no knowledge or means of knowing or ascertaining the facts concerning the conveyance of the Tecumseh property to Mrs. Easterday or the fraudulent intent of the defendants in having said property conveyed to her; that he had employed competent persons to make inquiries and investigations, and had himself made inquiries and investigations, in Tecumseh, where the defendants had resided for ten years, and had at all times been informed that Martin V. Easterday had no property whatever out of which he could collect his debt; that the defendant Martin V. Easterday had informed him that he possessed no property of any kind from which the debt could be paid and that during the four weeks just prior to the filing of his petition in this action he had discovered the fact that Martin V. Easterday was the real owner of the Tecumseh property standing in the name of Mrs. Easterday, and the fraudulent intent and purpose with which it had been conveyed to her. The defendants filed a joint answer, in which they admit that the legal title to the land conveyed to Gremmitt stood in the name of Martin V. Easterday, but allege that, while such was the case, it was purchased with the money of Mrs. Easterday. They admit the exchange of said lands for Loup county, Nebraska, lands and the taking of the title in the name of Martin V. Easterday, but allege that Mrs. Easterday was the equitable owner of said Loup-county lands. They admit that in October, 1892, they exchanged the Loup-county land with one Ellsworth for the property in the city of Tecumseh described in plaintiff's petition, and that the title to the last-mentioned property was taken in the name of Mrs. Easterday for the reason, as is alleged, that her money and the proceeds of her property paid the entire price thereof, and deny that there was any fraudulent intent in any of the above-mentioned conveyances. For a further defense they make the following plea: "As a second and further defense, defendants allege that plaintiff had full knowledge of all the facts and circumstances surrounding all of the transactions mentioned above and which are referred to in his petition, as early as November, 1892, and more than five years have elapsed since said transactions took place, during all of which time the deeds showing said transactions and the consummation thereof, have been on record, and known by said plaintiff, and the alleged cause of action set up in plaintiff's petition, which is based upon the alleged fraud of these defendants, has long prior to the commencement of this suit, been barred by the statute of limitations, and for that reason plaintiff can not maintain this suit."

Shortly after the marriage of the defendants, Mrs. Easterday received some money from her mother. This she gave to her husband, who invested it in lands in Illinois, taking a deed in his own name. During his service as a soldier in the war of the rebellion this land was sold, and Mrs. Easterday purchased other lands with the proceeds, taking title in her own name. On the return of Mr. Easterday this land was sold, and the parties came west, where the money was invested in land near the city of Tecumseh; title being taken in the name of Mr Easterday. This was in 1870 or 1871, and since that date Easterday has bought and sold and exchanged lands, taking title in his own name, engaged in the agricultural business, and done business generally, all the property handled and controlled by him being in his own name. While it is true he testified that all of the property which he has handled during this long series of years was the proceeds of money obtained from his wife, he also testifies that no account of the amount received was ever kept, and no agreement outside of some indefinite understanding between them was ever made, that she should be regarded as the owner of any property standing in his name or of any interest therein. If the money which she advanced was anything more than a gift, there is nothing in the record from which we can ascertain with any degree of certainty the amount she...