Helman v. Davis

• Decision Date: 14 November 1888
• Citation: 40 N.W. 309,24 Neb. 793
• Parties: HELMAN ET AL. v. DAVIS ET AL.
• Court: Nebraska Supreme Court

24 Neb. 793

40 N.W. 309

HELMAN ET AL.

v.DAVIS ET AL.

Supreme Court of Nebraska.

November 14, 1888.

Syllabus by the Court.

An action for relief on the ground of fraud may be commenced at any time within four years after a discovery of the facts constituting the fraud or of facts sufficient to put a person of ordinary intelligence and prudence on an inquiry, which, if pursued, would lead to such discovery. Parker v. Kuhn, 21 Neb. 413, 32 N. W. Rep. 74.

In a creditor's suit brought by H. & Co., against J. W. D. and E. D., his wife, for relief on the ground that certain lands conveyed to E. D. in 1873 were bought and paid for out of the money of J. W. D., or of a partnership of which he was a member, and the title taken in the name of E. D. for the purpose of defrauding the plaintiffs, the said J. W. D. and the said partnership being insolvent and indebted to the plaintiffs, the only evidence of any fact or occurrence within four years next before the bringing of the suit was that in 1883 plaintiff's counsel told him that he thought he had a good way of making the claim plaintiff had against J. W. D. and associates. Held, that the cause of action was barred by the statute of limitations.

Error to district court, Douglas county; WAKELEY, Judge.

Hall & McCulloch and E. R. Duffie, for plaintiffs in error.

Charles B. Keller, for defendants in error.

COBB, J.

This was a creditor's suit, brought in the district court of Douglas county by Meyer Helman and Aaron Cahn, plaintiffs, against James W. Davis and Elizabeth Davis and James M. Woolworth, defendants. The petition alleges that in the year 1868 the said James W. Davis and others were engaged in certain business enterprises in the name and style of “James W. Davis and Associates;” that in the months of April, May, and June of said year, the said James W. Davis and associates became indebted to the plaintiffs at various times, and in various amounts, aggregating $3,104.05; that in the year 1870, said sums remaining unpaid, the plaintiffs drew on said James W. Davis and associates for the amount, which draft was duly accepted, but which still remaining unpaid, the plaintiffs brought suit against the payees in the district court; that on June 30, 1874, in said court, they recovered judgment against James W. Davis and associates, the other members of the firm not being within the jurisdiction, for $3,330.96 damages, and $11.28 costs, on said acceptance; that said judgment is unpaid; that two executions have been issued thereon, the last on January 28, 1879, which, with accruing costs, amounting to $25, remain unsatisfied. The plaintiffs allege that during the year 1878 James W. Davis and associates and James W. Davis became insolvent and unable to pay their debts, and that the latter, with fraudulent design of defrauding the creditors of both, and particularly the plaintiffs, and for the purpose of concealing the property of both from their creditors, and particularly from the plaintiffs, to-wit, certain money and property of James W. Davis and associates, or the members thereof, and while said firm and James W. Davis were insolvent, bought certain lands in Douglas county, to-wit, the N. 1/2 of the N. W. 1/4 of section 35, township 15 N., of range 12 E., and took the title to said lands in the name of said Elizabeth Davis. But the plaintiffs aver that Elizabeth Davis has no interest in said lands, nor did she pay any part of the purchase money, but the lands were paid for out of certain money of James W. Davis and associates, or of James W. Davis, and was so conveyed solely to defraud the creditors, which facts were well known to Elizabeth Davis at the time of the conveyance; and that, in pursuance of their fraudulent design, and for the more perfectly concealing and covering the land from the firm's creditors, and particularly to hinder, delay, and postpone the plaintiffs, James W. Davis mortgaged the property to James M. Woolworth, their co-defendant, and, by virtue of the mortgage, certain parts of the land were sold and conveyed in proceedings of foreclosure to James M. Woolworth, who had full knowledge of all the facts set forth at the times hereinbefore mentioned. That said plaintiffs had no knowledge of the facts until the year 1882. That by reason of said fraudulent conveyance and transfer of mortgage, they are hindered and delayed in recovering their debt, due on said judgment, and by reason thereof the defendants fraudulently concealed the property of James W. Davis and associates from the plaintiffs, their creditors. Wherefore it is prayed that the conveyances and sales of land to Elizabeth Davis and to James M. Woolworth may be decreed null and void as against the judgment lien of the plaintiffs; that the same may be sold to satisfy said lien, and that the purchaser may take the same, free of all incumbrance, and for general relief.

The defendants Elizabeth Davis and James W. Davis answered, denying all allegations except such as they expressly admitted in answers.

(1) They admit that in 1868 James W. Davis and others were engaged in business under the name of “James W. Davis and Associates;” that said firm became indebted to the plaintiffs, but not at the times nor in the amounts claimed; that on July 1, 1870, the plaintiffs drew on James W. Davis and associates for $2,104.05, and not for $3,104.05, as stated. They admit the acceptance of the draft, on its date, July 1, 1870. They admit the suit of the plaintiffs against James W. Davis and associates in the district court of Douglas county, and the recovery of judgment June 30, 1874, for $3,319.78, and costs, $11.35, but not for a larger sum, as stated. They aver that the judgment was void for want of jurisdiction of the court of the persons of defendants, and for the reason that the petition in suit did not state facts sufficient to constitute a cause of action against the defendants; and deny that the sums in the petition mentioned are still due and owing from James W. Davis and associates to the plaintiffs, but that on the ______ day of ______, 18--, the plaintiffs received a large amount to be applied on credit on said draft as dividend to be paid thereon in certain judicial proceedings then pending in the supreme court of the city and county of New York, the amount of which the defendants are not advised and cannot state. They deny that in the year 1868 James W. Davis and associates became insolvent; or that James W. Davis, for the purpose of defrauding creditors, or of converting or concealing property from creditors, bought the lands described; or that the same was bought with the money of James W. Davis and associates; or that the same were purchased while James W. Davis and associates were insolvent; or that the same were paid for out of the money of said firm; or that the same were conveyed to Elizabeth Davis with an intent to defraud the creditors of the firm, or of any member thereof; or that said defendants had any knowledge of any such fraudulent intent at the time of the conveyance to her; or that, for the purpose of concealing and converting the lands from the creditors of the firm, or to in any way hinder or delay the plaintiffs, the lands were mortgaged by this defendant and James W. Davis to their co-defendant James M. Woolworth; or that the plaintiffs had not full knowledge of the facts of all such conveyances and of the consideration therefor until the year 1882, as alleged; or that by reason of anything alleged in the petition the plaintiffs have been hindered or delayed in the collection of their debt; or that the defendants have fraudulently concealed the property of James W. Davis and associates from their creditors. But, on the contrary, they aver that at the time of the purchase of the lands the said firm were not indebted to the plaintiffs on the cause of action mentioned, or on any part thereof; that said firm and James W. Davis individually were then and for a long time thereafter entirely solvent, and abundantly able to...