Jones v. Dunbar

• Decision Date: 15 June 1897
• Docket Number: 7294
• Citation: 71 N.W. 976,52 Neb. 151
• Parties: N. T. JONES ET AL. v. BERT A. DUNBAR
• Court: Nebraska Supreme Court

71 N.W. 976

52 Neb. 151

N. T. JONES ET AL. v. BERT A. DUNBAR

No. 7294

Supreme Court of Nebraska

June 15, 1897

ERROR from the district court of Hitchcock county. Tried below before WELTY, J. Affirmed.

AFFIRMED.

John P Maule and L. W. Blackledge, for plaintiffs in error.

Kinkead Mentzer & Granger, contra.

OPINION

IRVINE, C.

This case is one of that familiar class where a vendee of chattels replevies them from a sheriff who has seized them under a writ of attachment in an action against the vendor. The issue presented is the bona fides of the transfer to the plaintiff. The verdict and judgment in the district court were in favor of the plaintiff, and this proceeding is prosecuted by the defendants.

From the very lucid and fair statement contained in the brief of the plaintiff in error we obtain the evidence as follows: J D. Douglas and George H. Underhill lived in Lincoln. The daughter of Douglas and Charles Underhill, son of George H. Underhill, were engaged to be married. The younger Underhill was a druggist. For the purpose of establishing him in business, his father and his sister, Mrs. Swartz, conveyed certain real estate to Douglas. Douglas, with funds of his own and with the proceeds of the real estate, purchased a drug store which was operated in the name of J. D. Douglas & Co., the firm being composed of Douglas and wife, and the younger Underhill was installed as manager of the business under an agreement for the division of profits. To secure the elder Underhill and Mrs. Swartz for their contribution to the enterprise, a mortgage was executed upon the stock and fixtures, which was not filed for record until shortly before the occurrence of facts out of which this controversy arises. After some time the drug store was removed to Stratton, in Hitchcock county. The firm of J. D. Douglas & Co. became indebted to David Wise & Co. in the sum of $ 272, and to the H. T. Clarke Drug Company in the sum of $ 136.72. The business not proving prosperous, Douglas and Underhill desired to sell out. Douglas & Co. had in their employ Bert A. Dunbar. After some negotiations with him, a sale was effected whereby Douglas & Co. transferred the store to Dunbar. Dunbar executed his notes, secured by mortgage, to the elder Underhill and to Mrs. Swartz for $ 400, and they released their mortgage. He also executed a relinquishment of a "tree claim," or timber culture entry, on certain land in Hitchcock county, and delivered this relinquishment to the younger Underhill, who presented the relinquishment at the land office and entered the land as a homestead in his own name. Thereupon Wise & Co. and the Clarke Drug Company instituted actions on their debts and procured attachments to be issued and levied on the stock and fixtures of the drug store. Dunbar replevied. In addition to the foregoing facts it appears that in the trade the drug store, in pursuance of an inventory, was valued at $ 2,000; that Dunbar had "broken" about forty acres of the land, and that the value of his right to the land was placed at $ 1,600.

It is quite correctly contended by the plaintiff in error that in order to protect Dunbar's title three facts must exist First, the purchase must have been made without notice of an intent on the part of the vendors to defraud their creditors; second, the purchase must be for a valuable consideration; and third, the consideration must be executed. On the assignment of error that the evidence is not sufficient to sustain the verdict we shall not inquire whether a fraudulent intent on the part of Douglas & Co. was established, because we think the evidence sufficient to sustain the verdict on the ground that Dunbar was not a party to the fraud, if any existed, and was a bona fide purchaser. In such cases, by the express terms of the statute, the question of fraudulent intent is a question of fact and not of law. (Compiled Statutes, ch. 32, sec. 20.) The evidence tends to show that Dunbar knew of the indebtedness of the elder Underhill and Mrs. Swartz, and took pains that they should be satisfied before making the purchase, and that he knew of no other indebtedness. It is...