Howard v. Raymers

• Decision Date: 19 March 1902
• Citation: 89 N.W. 1004,64 Neb. 213
• Parties: HOWARD ET AL. v. RAYMERS ET AL.
• Court: Nebraska Supreme Court

64 Neb. 213

89 N.W. 1004

HOWARD ET AL.

v.RAYMERS ET AL.

Supreme Court of Nebraska.

March 19, 1902.

Syllabus by the Court.

1. Where an execution has been levied upon a fraudulently alienated piece of real estate after a failure to find goods and chattels, the execution creditor is entitled to proceed at once in equity to set aside the fraudulent conveyance and enforce the lien of the execution.

2. Where premises are claimed to constitute a part of the homestead of a debtor because adjoining premises are occupied as a residence of debtor's family, it is necessary to show a homestead right in the premises on which the family live.

3. A mere permissive residence in the family of one's father-in-law, however long continued, will establish no homestead rights in the father-in-law's land.

Commissioners' opinion. Department No. 1. Appeal from district court, Hamilton county; Sedgwick, Judge.

Action by Sullivan Howard and others against Rein Raymers and others. Judgment for plaintiffs. Defendants appeal. Affirmed.O. A. Abbott, for appellants.

Hainer & Smith, for appellees.

HASTINGS, C.

Two questions seem to be presented in this case. The first one relates to the levy and return of an execution on which the creditors' bill which constitutes the action is based. The plaintiffs, having recovered a judgment in the Hamilton county court, and filed transcript in the district court, procured an execution on which the sheriff indorsed, “After diligent search, I can find no goods or chattels whereon to levy and collect this writ, or any part thereof,” and then levied it on the premises in question in this action. No return seems to have been made to the execution, but the creditors' suit to set aside a deed of the land levied upon was commenced before a return was due. Pending the trial, leave was obtained to make a return to the execution, and to file a supplemental petition showing the same. A demurrer to the petition had been previously overruled, and an answer filed. Appellants claim now that these proceedings did not constitute a sufficient foundation for equitable proceedings to set aside the conveyance which is attacked in this action, and cite Weaver v. Cressman, 21 Neb. 675, 33 N. W. 478, and Jones v. Green, 1 Wall. 330, 17 L. Ed. 553, in support of their position. Weaver v. Cressman merely goes to the extent of holding that a nonresident creditor may not proceed to appropriate funds of a nonresident debtor in the hands of the clerk of a court without first showing that the debtor had no attachable property in this state. Jones v. Green is simply a holding that, before equity would intervene, an attempt at collection by process of law must have been made; but it also holds that, where the execution has been levied upon property fraudulently conveyed, equity will intervene to make such levy effectual on the ground of vindicating the lien acquired by the execution. The same doctrine is asserted in 3 Freem. Ex'ns (3d Ed.) p. 2316, § 430. This was the precise position taken by the court...