James Leffel & Co. v. Schermerhorn

• Decision Date: 08 December 1882
• Citation: 14 N.W. 418,13 Neb. 342
• Parties: JAMES LEFFEL & CO., PLAINTIFFS IN ERROR, v. MARTIN L. SCHERMERHORN AND OTHERS, DEFENDANTS IN ERROR
• Court: Nebraska Supreme Court

14 N.W. 418

13 Neb. 342

JAMES LEFFEL & CO., PLAINTIFFS IN ERROR, v. MARTIN L. SCHERMERHORN AND OTHERS, DEFENDANTS IN ERROR

Supreme Court of Nebraska

December 8, 1882

ERROR to the district court for Nuckolls county. Tried below before WEAVER, J.

AFFIRMED.

H. W Short, for plaintiffs in error.

Deed was without consideration and void. 1 Bouvier Institutes secs. 576, 578. In this case there was no acceptance of either deed or property, or of the offer to sell. Under decision in 3 Neb. 140, there must have been an absolute sale or nothing. Parties have sworn it was not a mortgage, and court cannot make it such by its finding and decree. If it is a deed, is it upon sufficient consideration? Tootle & Maule v. Dunn, 6 Neb. 99. Savage v. Hazard, 11 Id., 323. Grantors are shown to be insolvent. It cannot be presumed that grantee was an innocent purchaser. Wake v Griffin, 9 Neb. 47. Knowlton v. Hawes, 10 Id., 534.

D. W. Barker, for defendants in error.

OPINION

LAKE, CH. J.

The action below was brought by the plaintiffs in error, who are judgment creditors of said Schermerhorn and John W. Kern, partners, to set aside a conveyance by them to George Kern, the father of John W., of a certain mill property, as being in fraud of creditors. The fact of the plaintiffs being judgment creditors is conceded, and the defense consisted simply of a denial of the alleged fraudulent character of the conveyance.

The errors formally assigned are four, but they may be properly regarded and considered as one, viz., that the court was not warranted by the testimony in finding that George Kern was a purchaser or mortgagee in good faith, and that there was consequently no equity in the plaintiffs' case.

The conveyance complained of was in form an absolute deed, and plaintiffs' counsel urge in argument that whatever the rights of George Kern may have been the court was not justified in holding it to have been in effect a mortgage simply; that he either had the right of an absolute purchaser, or none at all. To this it may be answered that George Kern does not complain. He seems to be satisfied with the judgment in this particular. Besides, it is of no consequence to the plaintiffs whether George Kern were held to have taken by his deed an absolute interest, or only a conditional one, so long as they failed to show that he was a fraudulent grantee.

In regard to the finding of the court below upon the question of...