Gentry v. Burge
| Decision Date | 12 July 1935 |
| Docket Number | 29005. |
| Parties | GENTRY v. BURGE ET AL. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. Admissions or statements of a party with reference to the acquisition and disposition of his real and personal property made before a referee in bankruptcy are admissible against him in an action in the district court when the good faith of such acquisition and disposition is in issue.
2. In an action to set aside transfers of property where it is claimed that such transfers were made to members of one's own family for the purpose of defrauding creditors, the burden is on the transferees to show that such transfers were not fraudulent.
3. The general rule of law is that the admissions of a party are admissible in evidence against him, but will not affect others unless a joint interest or privity of design between them is shown to exist.
4. If as the evidence shows in this case, there is and was a joint interest and also a privity of design in disposition and acquisition of property to place such property beyond the reach of creditors, then the admissions of one of the parties before a referee in bankruptcy are admissible as against the other parties.
5. " While the law requires this court, in determining an appeal in an equity action involving questions of fact, to reach an independent conclusion without reference to the findings of the district court, this court will, in determining the weight of the evidence, where there is an irreconcilable conflict therein on a material issue, consider the fact that the trial court observed the witnesses and their manner of testifying." Johnson v Erickson, 110 Neb. 511, 194 N.W. 670.
Appeal from District Court, Scotts Bluff County; Carter, Judge.
Action by B. F. Gentry, trustee in the matter of Harlan Burge bankrupt, against Harlan Burge and others. From a decree, defendants appeal.
Decree amended and, as amended, affirmed.
Olsen & Olsen, of Gering, for appellants.
William H. Heiss, of Gering, for appellee.
Heard before GOSS, C. J., ROSE, GOOD, EBERLY, DAY, and PAINE, JJ., and YEAGER, District Judge.
This is an action brought by B. F. Gentry, who is trustee in the matter of Harlan Burge, bankrupt, against Harlan Burge, the bankrupt, Gertrude Burge, his wife, Cleo Burge, his son, Gladys Burge, his son's wife, and Burge Grocery and Produce Company, a corporation, the object and purpose of which is to set aside transfers of real estate and other property by Harlan Burge to his wife, his son, and the defendant corporation, claimed to have been made in fraud of creditors of the said Harlan Burge.
After a lengthy trial and the introduction of much evidence, the court found in favor of the plaintiff in the fol lowing particulars:
" That lot 2 block 6, original town of Gering; an undivided interest (apparently an undivided one-third interest) in lot 3, block 6, original town of Gering; all of lots 10, 11 and 12, in block 4, original town of Gering; and an undivided one-third in test in a part of the northwest quarter of section 2, township 21 north, range 55 west of the 6th P. M., which lands are, in the decree, described particularly by metes and bounds, was the property, in fact, of Harlan Burge, and that Gertrude Burge held the title to the same only as trustee for the said Harlan Burge;
That the plaintiff recover from Gertrude Burge the sum of $1,450, with interest at 7 per cent. per annum from March 23, 1922, this being the proceeds of a note which she had collected and which the court found was in fact the property of Harlan Burge, but which was taken in the name of Gertrude Burge for the purpose of defrauding creditors, and which is referred to as the Matthews note;
That Gertrude Burge delivered to the plaintiff 59 shares of stock in the Burge Cash Grocery and Produce Company, or in lieu thereof that she pay the value of such stock as of February 17, 1925, with interest at 7 per cent. per annum from February 17, 1925, for the reason that she was not the true owner, but only trustee for Harlan Burge;
That the plaintiff have and recover from Cleo Burge and Gladys Burge, his wife, a one-half interest in the Burge Cash Grocery and Produce Company, and such property as may have been placed of record in their names since the commencement of this action. "
The creditor's claim which is the basis of this action was that of one Arthur P. Bressler on account of a deficiency judgment rendered on October 10, 1929, for $5,025.62, with interest at 10 per cent. per annum from the date of the rendition of judgment. This claim is not disputed by the defendants.
From the decree, the substantial particulars of which have been set out, the defendants have appealed and are seeking a reversal on all points of the decision.
The appellants rely for a reversal on five separate assignments of error. The second, third and fifth must stand or fall with the first and fourth.
On the hearing before the referee in bankruptcy, the defendant Harlan Burge testified at length with reference to business transactions covering a long period of years, and particularly with reference to the properties and business transactions concerning which proper and exhaustive inquiry was made on the trial of the issues in this case. As the first step in the introduction of evidence in this case, the plaintiff offered in evidence Exhibit 1, being a transcript of the evidence given by Harlan Burge before the referee in bankruptcy. The defendants objected to the introduction of the exhibit on the ground that it was incompetent, irrelevant and immaterial. No separate objection was made by the defendants. The objection was overruled. No other objection was made to parts or portions of the exhibit. The offer, the objection and the ruling appear on page 6 of the bill of exceptions. An examination of the testimony contained in the exhibit is replete with statements which were in the nature of admissions against interest which were pertinent to this inquiry and therefore admissible without question as to the defendant Harlan Burge.
It is a well-settled rule that admissions of a party against interest made in court or out of court, with reference to and pertinent to the issues being tried, are admissible in evidence against such party. German Nat. Bank v Leonard, 40 Neb. 676, 59 N.W. 107; Lowe v. Vaughan, 48 Neb. 651, 67 N.W. 464; Carlson & Hanson v. Holm, 2 Neb. (Unof.) 38, 95 N.W....
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