Goldsmith v. Fuller

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

46 N.W. 712

30 Neb. 563

SAMUEL GOLDSMITH ET AL. v. W. A. FULLER ET UX

Supreme Court of Nebraska

October 14, 1890

ERROR to the district court for Valley county. Tried below before TIFFANY, J.

AFFIRMED.

Nightingale Bros., for plaintiffs in error.

Wall & Bradley, contra.

OPINION

MAXWELL, J.

This is an action in the nature of a creditor's 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 Bros., 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, Nebraska, and that on February 12, 1887, plaintiffs caused an execution to be issued 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 14, 1887, and on February 17, 1887, duly advertised said property to be sold under said execution upon the 19th day of March, 1887, at one 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 E. S. Fuller; and 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 plaintiff's 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 ten per cent 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, Nebraska, 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 situated 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, situated in North Loup, Valley county, Nebraska, and a deed of general warranty was made and delivered by J. G. Corey and wife, of North Loup, property in which the defendant W. A. Fuller is named as grantee. * * * That said deed from said Corey to said W. A. Fuller was entered in the numerical index of Valley county, Nebraska, and filed for record on February 26, 1886, and was recorded in book 5, at page 616, of deed record of said county. That the title to the property in plaintiffs' petition described was placed and vested in defendant W. A. Fuller, with the knowledge and consent of the defendant Eliza Fuller.

"12. That defendant Eliza Fuller was, prior to November 25, 1884, possessed of a separate estate, and is possessed of a separate estate at the present time, and is now conducting a business in her own name in Arcadia, Valley county, Nebraska, as a married woman trader.

"13. That there was no instrument of record in Valley county, Nebraska, showing that defendant Eliza Fuller had any interest in the real property described in plaintiff's petition, other than that of wife of said W. A. Fuller, until the recording of the deed from said W. A. Fuller to said Eliza Fuller of the said premises, on December 24, 1886.

"14. That on May 3, 1887, plaintiffs recovered a judgment, as in plaintiffs' supplemental petition alleged, against defendant W. A. Fuller, and Josephine R. Fuller, and E. S Fuller in the sum of $ 353.67, and $ 5.85 costs, in county court of said county,...