Goldsmith v. Fuller

• Decision Date: 14 October 1890
• Citation: 30 Neb. 563,46 N.W. 712
• Parties: GOLDSMITH ET AL. v. FULLER ET AL.
• Court: Nebraska Supreme Court

30 Neb. 563

46 N.W. 712

GOLDSMITH ET AL.

v.FULLER ET AL.

Supreme Court of Nebraska.

Oct. 14, 1890.

Syllabus by the Court.

1. In a creditors' bill, brought to subject certain real estate conveyed by a husband to his wife, the proof clearly established the fact that the consideration which he paid for the real estate was derived from the separate estate of the wife, but that the title was taken in the name of the husband, under a parol agreement to convey to her, on demand. The court below having found in favor of the wife, held, that the judgment was supported by the clear weight of evidence.

2. Held, that the proof failed to show that the creditor had relied upon the husband being the owner of the property in extending certain credit.

Error to district court, Valley county; TIFFANY, Judge.Nightingale Bros., for plaintiffs in error.

Wall & Bradley, for defendants in error.

MAXWELL, J.

This is an action in the nature of a creditors' bill, brought by the plaintiffs against the defendants, to subject certain real estate held by Eliza Fuller to the payment of the plaintiffs' judgments. The defendants are husband and wife, and the conveyance was made directly by the husband to his wife. There is a stipulation of facts in the record as follows: “And now come the plaintiffs by Nightingale Brothers, their attorneys, and the defendant Eliza Fuller, by her attorneys, Wall & Long, and stipulate and agree that the following facts are true, and shall be received in evidence in said cause, to-wit: (1) That said plaintiffs are partners doing business under the firm name of Goldsmith, Stein & Co. (2) That at the February term of the county court of said county on, to-wit, the ______ day of February, 1887, said plaintiffs recovered a judgment against Josephine R. Fuller, E. S. Fuller, and the defendant W. A Fuller, in the sum of $339.59, and $5.60 costs, and that said judgment is still in full force, and wholly unpaid. (3) That a certified transcript of said judgment was, on February, 11, 1887, duly filed and docketed in the district court of Valley county, Neb., and that, on February 12, 1887, plaintiffs caused an execution to issue on said judgment, which was delivered to the sheriff of said county, to-wit, W. B. Johnson. (4) That said sheriff, for want of goods and chattels of Josephine R. Fuller, E. S. Fuller, and the defendant W. A. Fuller, whereon to levy, levied said execution, by instructions of plaintiffs, upon the real estate described in said petition as the property of said W. A. Fuller, defendant, on February 17, 1887, duly advertised said property to be sold under said execution upon the 19th day of March, 1887, at 1 o'clock P. M.; that said real estate was not sold by said sheriff on said day, for the reason that the legal title to said premises appeared of record in the defendant Eliza Fuller. (5) That said defendant Eliza Fuller is the wife of the defendant W. A. Fuller, and the said E. S. Fuller is the son of the defendant W. A. Fuller, and the said Josephine R. Fuller is the daughter-in-law of the defendant W. A. Fuller, and the wife of the said E. S. Fuller; and that each of said co-judgment debtors, to-wit, Josephine R. Fuller, E. S. Fuller, and W. A. Fuller, is insolvent, and said W. A. Fuller is unable to pay said judgment debt, unless the real property so levied upon is applied to the payment of the same. (6) That, on December 18, 1886, the defendant W. A. Fuller made and delivered a deed of conveyance of the real estate in plaintiffs' petition described, to the defendant Eliza Fuller, by deed of general warranty; that, though said deed recites a consideration of $2,000, no consideration actually passed or moved from said Eliza Fuller to her husband, the said W. A. Fuller, at the time of said transfer, nor subsequent thereto. (7) That, on August 4, 1886, defendant W. A. Fuller signed, executed, and delivered to plaintiffs three notes as follows, to-wit: One for $318.32, due November 1, 1886; one for $318.32, due January 1, 1887; and one for $318.32, due March 1, 1887,--each drawing interest at 10% per annum from March 24, 1886; that said notes were signed by said Josephine R. Fuller and E. S. Fuller as principal makers, and by said W. A. Fuller as surety, and were given to secure an extension upon indebtedness then due these plaintiffs. (8) That, at the time said notes were signed by defendant W. A. Fuller, and said extension of time so given to the said Josephine R. Fuller, and the said E. S. Fuller, the said Josephine R. Fuller was conducting a general retail mercantile business in the town of Arcadia, Valley county, Neb., and was the owner and in possession of a store and stock of goods. (9) That on November 15, 1886, the first of said above-mentioned notes was paid in full; that, prior to the maturity of the second note, all of the property of the said Josephine R. Fuller was seized under writs of attachment at the suit of divers creditors of said Josephine R. Fuller, and was ultimately sold to satisfy the judgments obtained by said creditors. (10) That, prior to these transactions, on, to-wit, the 25th day of November, 1884, while the defendants were residing in the state of Iowa, the defendant Eliza Fuller conveyed to her husband, the defendant W. A. Fuller, by deed of general warranty, certain real property situate in the town of Eldora, Hardin county, and state of Iowa, of the value of $2,500. (11) That the said real property situate in Eldora, Hardin county, state of Iowa, was, on January 27, 1886, exchanged for the real property in plaintiffs' petition described, situate in North Loup, ...