Harrington v. Latta

• Court: Nebraska Supreme Court
• Writing for the Court: REESE
• Citation: Harrington v. Latta, 36 N. W. 364, 23 Neb. 84 (Neb. 1888)
• Decision Date: 06 January 1888
• Parties: HARRINGTON v. LATTA ET AL.

23 Neb. 84

36 N.W. 364

HARRINGTON

v.LATTA ET AL.

Supreme Court of Nebraska.

January 6, 1888.

Syllabus by the Court.

A motion for a new trial must be made in the court below in order to entitle a party to a review of the case by petition in error, where the alleged errors occurred upon the trial of the cause.

Where the findings of fact, found specially by a trial court, were not excepted to, and are in favor of the party appealing, they will be taken as correct, and will not be questioned by the supreme court.

The filing of a transcript of a judgment of the county court in the office of the clerk of the district court during the pendency of a suit to foreclose a mechanic's lien or mortgage would only create an incumbrance upon the equity of redemption of the defendant in the foreclosure proceedings, and such judgment creditor would not be a necessary party to such action. The judgment lien, being created pendente lite, would be extinguished by such foreclosure.

Appeal from district court, Lancaster county; POUND, Judge.

This case was a creditors' bill whereby Andrew Harrington sought to subject certain property, the title to which was in Sarah Latta, to a judgment obtained against her husband, William S. Latta. Judgment was rendered for the plaintiff, and defendants appealed.Chas. L. Hall and C. O. Whedon, for appellant.

J. R. Webster, for appellee.

REESE, C. J.

This action was in the nature of a creditors' bill, commenced in the district court of Lancaster county The allegations of the plaintiff's petition were, in substance, as follows:

“That on the seventeenth day of February, 1876, defendant William L. Hobbs obtained a judgment against defendant W. S. Latta for the sum of $328.65, and $9.20 costs, amounting to the sum of $337.93, and on the twentieth day of October of the same year a transcript of said judgment was duly filed and docketed in the office of the clerk of the district court of Lancaster county, and entered on the proper records of said court; that executions had been entered on said judgment at short intervals of time from that day until the commencement of this action, and that judgment was in full force and effect, and wholly unsatisfied; that defendant William S. Latta, by the fraudulent conveyances and devices mentioned in the petition, had wholly rendered himself insolvent, and had no property whatever liable to execution to satisfy said judgment; that in the recovery thereof said judgment had, through mesne conveyances and assignments, been transferred to plaintiff, who was the owner and holder thereof, but that Hobbs and Smith were made defendants to the action merely that all equities asserted for or by them might be barred; that the indebtedness upon which the judgment was based accrued in 1873, for money paid out in payment of taxes upon certain lands in Cass county belonging separately to defendants said William S. Latta and Sarah A. Latta; and that when said indebtedness accrued said William S. Latta was a man of ample means, and as late as December, 1875, had real and personal property in the counties of Cass, Lancaster, and Butler of great value, and was worth more than ten thousand dollars above all indebtedness and liabilities; that from said date to the time of this action he had been and was a physician with a lucrative practice, from which, between the first day of March, 1876, and the first day of May, 1883, he had realized not less than $7,805.98, and from May, 1883, to the time of the commencement of this action, the sum of $145 per month, amounting in all to over $11,620 of personal income since March 1, 1876; that on the twenty-third day of October, 1875, said William S. Latta was the holder of a mortgage interest upon certain grist-mill property of one John A. Latta, which was insured against loss by fire to secure said mortgage interest, and on or about the twenty-third day of October the mill was burned, and the insurance money was paid to the defendant on the seventeenth of February, 1881, the amount so paid being $1,608.75, and which was deposited in bank to the credit of defendant Sarah A. Latta, the wife of defendant W. S. Latta; that on the twenty-eighth day of March, 1881, she purchased of L. W. Billingsly and G. M. Lambertson certain real estate described as two feet of lot B, and lot C, in Cropsey's subdivision of lots 16, 17, and 18, in block 55, in the city of Lincoln, paying therefor the sum of $1,608.75, and other moneys, the proceeds of the property of said William S. Latta, and paid into her hands, amounting to a total of $3,078.27. The aforesaid property, so by her purchased with the money of the said William S. Latta, the said Sarah A. Latta has ever since received and enjoyed the rents and income, amounting to over $75.00 per month, since the twenty-eighth day of March, 1881.

That on the twentieth day of November, 1875, said William S. Latta was the owner of lots 9 and 10, block 78, in the city of Lincoln, having thereon a dwelling-house occupied by himself and family, and also had a two-story additional building on leased ground, and used as a store or business building, which was of the value of $1,500, which building he, without consideration, conveyed to one John S. Gregory, upon the consideration that the said Gregory should convey and set over the same to defendant Sarah A. Latta, which building said Latta caused to be removed to and placed upon said lots 9 and 10, and converted into two dwelling-houses, which were capable of producing, and did produce, from and after the first day of January, 1876, the sum of $35.00 each per month; that the dwelling-house was partially occupied by the family of defendants, and partly rented in rooms, produced a further sum; and said two lots and three dwelling-houses had a rental value of over $100 per month, and were then worth the sum of $4,000, and are now worth more than $10,000, and of more value than he could hold as a homestead exempt from sale on execution; that on the seventh day of February, 1876, for a pretended consideration of $3,500, but in fact without any consideration whatever, the Lattas conveyed the same to one R. M. Moyer, husband of the sister of Sarah A. Latta, who on the thirtieth day of June, 1885, reconveyed the same upon no consideration to Sarah A. Latta, and the said William S. Latta continued to hold the said real estate and occupy the same, and that said deed was made only to cover up and becloud the title to said premises; and to further becloud and cover up the said property said William S. Latta let sundry debts accumulate for material and labor in the refitting of the two dwelling-houses placed thereon, and permitted mechanics' liens to be held upon said premises, and without claiming the part of the same on which the dwelling-house was situated, allowed judgment to pass against the whole two lots, in an action brought by one Edwin H. Tuttle in the district court against them and others, and which suit was commenced on the third day of July, 1876, judgment being rendered May 25, 1877, and the sale of the property made by the sheriff June 26, 1877, to Charles T. Boggs and S. W. Little, for $1,601, subject to the mortgage of $475, and which sale was confirmed October 5, 1877, without opposition; that on the same day the premises were conveyed by the sheriff to said Little and Boggs, and were on the same day by them conveyedto defendant Sarah A. Latta for a pretended consideration of $180, less than they had that day paid, or pretended to pay, at said sale for said property, and subject to a morgage of $475.

It is averred that said sale was colorable only, and that Sarah A. Latta paid nothing in fact for the title of the property, and that on said day Sarah A. borrowed, or pretended to borrow, of one Martin H. Brush, an inmate of their house and member of their family, the sum of $1,000, which sum was that day by them secured to Brush on said property, and remained a lien thereon until February 27, 1883; that the mortgage for $475 was not paid nor discharged until the eighteenth day of August, 1883, and the premises were, aside from the family dwelling-house, producing rents in the sum of $50 per month or more, so that said premises, in and during the term of said mortgages, produced rents in the sum of or more than $3,100, and granting the sum so assumed to appear to have been borrowed of Brush, with interest at twelve per cent. per annum on both said mortgages for the whole term, and insurance and taxes included, and that no more than $516 being invested by Sarah A. in the purchase of the premises, and that the premises so occupied as a homestead are of much greater value than $2,000, to-wit, of the value of $10,000, and all said conveyances and proceedings were a shift and device to cover up and becloud the title of said premises, and hinder, delay and defraud the creditors of William S. Latta; that plaintiff is entitled to have the proceedings and conveyances annulled and set aside and held for naught, and to have the premises appraised for sale and sold for a greater valuation than $2,000, the limit of the homestead exemption; that on the twenty-second day of January, 1876, defendants William S. Latta and Sarah Latta by their deed conveyed to William Eikenbury, the brother of Sarah, certain lands situated in the county of Butler, described as the south-west quarter of section 5, the south-west quarter of section 8, and the north-west quarter of section 17, all in township 13 north, of range 3 east, then of the value of $3,600, for the false and recited consideration of $2,160, without any consideration in fact paid; executed deed was thereupon duly recorded, and said Eikenbury soon after, by his deed dated the twenty-sixth day of September, 1876, reconveyed said lands to Sarah for the falsely recited consideration of $2,000 by her paid, whereas in fact no consideration whatever was by her paid, but that the deed, which was for fraudulent purpose of...