Gage Brothers & Company v. Burns

• Decision Date: 18 April 1907
• Docket Number: 14,758
• Citation: 111 N.W. 791,78 Neb. 737
• Parties: GAGE BROTHERS & COMPANY, APPELLEE, v. MALINDA J. BURNS ET AL., APPELLANTS
• Court: Nebraska Supreme Court

111 N.W. 791

78 Neb. 737

GAGE BROTHERS & COMPANY, APPELLEE, v. MALINDA J. BURNS ET AL., APPELLANTS

No. 14,758

Supreme Court of Nebraska

April 18, 1907

APPEAL from the district court for Lancaster county: LINCOLN FROST JUDGE. Reversed with directions.

REVERSED.

J. E Philpott, for appellants.

Wilson & Brown, contra.

OLDHAM C. AMES and EPPERSON, CC., concur.

OPINION

OLDHAM, C.

This was an action in the nature of a creditor's bill for the purpose of setting aside a conveyance of certain town lots situated in the city of Lincoln, Nebraska, made by the defendant Malinda J. Burns to the defendant William A. Watson, on the ground that such conveyance was made for the purpose of hindering, delaying and defrauding the creditors of defendant, Mrs. Burns. There was a trial of the issues to the court, and judgment for the plaintiff. To reverse this judgment the defendants have appealed to this court.

The facts underlying this controversy are that at and prior to the year 1900 the defendant Malinda J. Burns was the owner of the lots in controversy; that Mrs. Burns was an aged lady who resided with and was supported by her daughter, Mrs. Sadie Puckett, who was engaged in the millinery business in the city of Lincoln; that in the year 1900 a judgment was procured by the plaintiff in this action against Mrs. Puckett in the county court of Lancaster county; that this judgment was appealed from, and Mrs. Burns signed the appeal bond as surety for her daughter. After the appeal was taken to the district court, judgment was rendered in that court in favor of the appellee in the year 1904, and in the same year a judgment was procured against the defendant, Mrs. Burns, as surety on the appeal bond. In 1902, and while the appeal was pending in the district court, Mrs. Burns sold and conveyed the premises in controversy to the defendant William A. Watson by a deed of warranty for the express consideration of $ 1,500 in cash. After the judgment was procured against Mrs. Burns in the district court for Lancaster county in the year 1904, and an execution had been issued and returned nulla bona, the instant suit was instituted for the purpose of subjecting the lots conveyed to Watson to the lien of plaintiff's judgment.

As the case is here for a trial de novo, we will supplement out judgment and findings by a brief review of the evidence offered in the court below. But four witnesses testified. One of these, defendant William A. Watson, said that he was the nephew of the defendant, Mrs. Malinda J. Burns; that he resided in the city of Omaha, Nebraska, and was engaged in the business of horseshoeing; that he came to Lincoln once or twice a year, generally on political errands; and that when in Lincoln he ordinarily visited his aunt and his cousin, Mrs. Puckett; that he called on his aunt, Mrs. Burns, a short time before the purchase of the property in dispute, and she told him that she was in need of money to live on, and wanted to sell her lots; that he suggested borrowing money on the lots, but she objected, because she had no means to pay the mortgage, and wanted him to purchase them from her; that he inquired of attorney Cochran as to the title of the lots and their probable value, and, finding that the title was clear, he agreed to take them; that he went to Omaha, and took some money that he had from his business and borrowed $ 1,150 more from a friend of his, Thomas Dennison, and returned to Lincoln, and paid the money in cash to Mrs. Burns in the presence of her daughter, Mrs. Puckett, and received the deed and placed it on record, and had since that time paid the taxes on the real estate in dispute. He denied positively that he had any information that Mrs. Burns was surety on the appeal bond of Mrs. Puckett at the time of the transfer, or that he knew that she was indebted to anyone for anything at that time.

Defendant Mrs. Burns, testified and admitted that she signed the appeal bond for her daughter, but says that she did not know that she was indebted to anyone...