Millard v. Parsell

CourtSupreme Court of Nebraska
PartiesMILLARD v. PARSELL ET AL.
Decision Date08 December 1898

57 Neb. 178
77 N.W. 390

MILLARD
v.
PARSELL ET AL.

Supreme Court of Nebraska.

Dec. 8, 1898.



Syllabus by the Court.

1. When the legal estates of a judgment debtor have been exhausted, a petition in the nature of a creditors' bill will lie in order to subject to payment of the judgment land in which his estate is equitable only, and which could not be reached on execution, or, if reached, could not be sold to advantage because of the clouded condition of the title.

2. Evidence examined, and held to sustain a finding for the plaintiff in a creditors' suit.

3. Matters which, if available at all, might have been urged in defense to an application for a deficiency judgment, cannot be urged in defense of a creditors' suit to enforce such judgment.

4. An order that, after exhausting the remedy against the principal debtor, the creditor may apply for and obtain a judgment against a guarantor of collection, is not final, and therefore not appealable.


Appeal from district court, Douglas county; Ambrose, Judge.

Action by Joseph H. Millard against George H. Parsell and others. Judgment for plaintiff, and defendants appeal. Appeal of defendants Ballou dismissed, and decree affirmed.

[77 N.W. 390]

W. H. De France, Silas Cobb, Otis H. Ballou, and Henry A. Drumm, for appellants.

L. F. Crofoot, for appellee.


IRVINE, C.

In 1887, Dr. George H. Parsell was the owner of lot 3, in block 78, in the city of Omaha, and June 11th of that year he made to O. H. and E. G. Ballou his note for $13,125, secured by mortgage on said lot. In 1889 the Ballous sold the note and mortgage to J. H. Millard, who is throughout the proceedings described as trustee, the nature of the trust not being disclosed and being immaterial. The Ballous at the same time guarantied the collection of the note. In 1890, Dr. Parsell conveyed the property to E. B. Chapman. In 1891, Millard began foreclosure proceedings, which resulted in a sale of the property and a judgment against Dr. Parsell for a deficiency of about $2,800. Certain other property of Dr. Parsell having been sold on execution for a nominal sum, the present case was begun.

The petition is multifarious, but its principal object was to subject to the satisfaction of the judgment a tract of 80 acres in Douglas

[77 N.W. 391]

county, which had been by Chapman conveyed to Mrs. Parsell at the time lot 3 was conveyed to Chapman, and which Mrs. Parsell had afterwards conveyed to Horatio Fowkes. The petition charges that the conveyance of this land from Chapman to Mrs. Parsell was for the purpose of defrauding Dr. Parsell's creditors; also that the consideration was the conveyance of lot 3 to Chapman, and moved entirely from Dr. Parsell, who became the equitable owner of the 80-acre tract. It was further alleged that the conveyance to Fowkes was colorable only, and made to defraud Dr. Parsell's creditors. Certain other instruments are incidentally attacked, but they are so connected with those mentioned that all must stand or fall together, and it is useless to complicate the opinion by specific reference thereto. Issue having been joined on these averments, the court found that the conveyance of the land to Mrs. Parsell was not made for the purpose of defrauding creditors, but that it was made in trust for Dr. Parsell, and that he was the equitable owner. The court further found that the conveyance from Mrs. Parsell to Fowkes was made for the purpose of defrauding Dr. Parsell's creditors, and that Fowkes knew of such...

To continue reading

Request your trial
18 practice notes
  • Arlington State Bank v. Paulsen, 8608
    • United States
    • Supreme Court of Nebraska
    • February 9, 1899
    ...St. 402; Miller v. Davidson, 3 Gilm. [Ill.] 518; Furlong v. Thomssen, 19 Mo.App. 364; Pickens v. Dorris, 20 Mo.App. 1; Millard v. Parsell, 57 Neb. 178, 77 N.W. 390; Galveston, H. & S. A. R. Co. v. McDonald, 53 Tex. 510; German Nat. Bank of Hastings v. First Nat. Bank of Hastings, 55 Neb. 86......
  • Arlington State Bank v. Paulsen
    • United States
    • Supreme Court of Nebraska
    • February 9, 1899
    ...St. 402;Miller v. Davidson, 3 Gilman, 518;Furlong v. Thomssen, 19 Mo. App. 364;Pickens v. Dorris, 20 Mo. App. 1;Millard v. Parsell (Neb.) 77 N. W. 390;Railroad Co. v. McDonald, 53 Tex. 516;German Nat. Bank v. First Nat. Bank (Neb.) 75 N. W. 531. 5. A further contention of the appellees is t......
  • Comstock v. Kerwin, 8476
    • United States
    • Supreme Court of Nebraska
    • December 8, 1898
    ...congress entitled 'An act to provide for the location of certain confirmed land claims in the state of Missouri, and for other purposes,' [77 N.W. 390] approved June 21, 1828 (11 Statutes at Large, 294 and 295), has had a private land claim which has not been located and satisfied, has died......
  • Parmele v. Schroeder, 9,084
    • United States
    • Supreme Court of Nebraska
    • March 20, 1901
    ...for the first time, it can be definitely ascertained that a deficiency actually exists." [61 Neb. 559] The case of Millard v. Parsell, 57 Neb. 178, 77 N.W. 390, cited in the first opinion under the issues formed and the decree rendered, is quite analogous to the one at bar, and it was there......
  • Request a trial to view additional results
18 cases
  • Arlington State Bank v. Paulsen, 8608
    • United States
    • Supreme Court of Nebraska
    • February 9, 1899
    ...St. 402; Miller v. Davidson, 3 Gilm. [Ill.] 518; Furlong v. Thomssen, 19 Mo.App. 364; Pickens v. Dorris, 20 Mo.App. 1; Millard v. Parsell, 57 Neb. 178, 77 N.W. 390; Galveston, H. & S. A. R. Co. v. McDonald, 53 Tex. 510; German Nat. Bank of Hastings v. First Nat. Bank of Hastings, 55 Neb. 86......
  • Arlington State Bank v. Paulsen
    • United States
    • Supreme Court of Nebraska
    • February 9, 1899
    ...St. 402;Miller v. Davidson, 3 Gilman, 518;Furlong v. Thomssen, 19 Mo. App. 364;Pickens v. Dorris, 20 Mo. App. 1;Millard v. Parsell (Neb.) 77 N. W. 390;Railroad Co. v. McDonald, 53 Tex. 516;German Nat. Bank v. First Nat. Bank (Neb.) 75 N. W. 531. 5. A further contention of the appellees is t......
  • Comstock v. Kerwin, 8476
    • United States
    • Supreme Court of Nebraska
    • December 8, 1898
    ...congress entitled 'An act to provide for the location of certain confirmed land claims in the state of Missouri, and for other purposes,' [77 N.W. 390] approved June 21, 1828 (11 Statutes at Large, 294 and 295), has had a private land claim which has not been located and satisfied, has died......
  • Parmele v. Schroeder, 9,084
    • United States
    • Supreme Court of Nebraska
    • March 20, 1901
    ...for the first time, it can be definitely ascertained that a deficiency actually exists." [61 Neb. 559] The case of Millard v. Parsell, 57 Neb. 178, 77 N.W. 390, cited in the first opinion under the issues formed and the decree rendered, is quite analogous to the one at bar, and it was there......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT