Miller v. Stevenson

• Decision Date: 22 March 1899
• Citation: 58 Neb. 305,78 N.W. 626
• Parties: MILLER v. STEVENSON ET AL.
• Court: Nebraska Supreme Court

58 Neb. 305

78 N.W. 626

MILLER

v.STEVENSON ET AL.

Supreme Court of Nebraska.

March 22, 1899.

Syllabus by the Court.

1. Evidence examined, and held to sustain the findings.

2. The pleadings and issues joined held to be inconsistent with, and not to present the question of, the right to subrogation.

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

Action by Albert Miller against Thomas Rowland, Renfrew Stevenson, and others. Judgment for plaintiff, and Thomas Rowland and certain other defendants appeal. Affirmed.Bartlett & Baldrige, for appellants.

Byron G. Burbank and Virgil O. Strickler, for appellee.

HARRISON, C. J.

Albert Miller, the appellee herein, who purchased at a sale under process in an attachment suit the undivided one-half of lot 19 in Cain Place, in Omaha, instituted this action to quiet title and secure a partition, and was awarded a decree, from which this appeal has been perfected.

On or about April 14, 1890, Renfrew Stevenson and certain other parties formed a partnership, and purchased some land, which was platted into lots,--19 in all,--and the whole was named “Cain Place.” The purchase was from one Martha M. Ish, who conveyed the property to Orrin R. Cain in trust for the partnership. Cain and the appellee were partners, and entered into a contract with the firm of Stevenson, Bohn & Spotswood to erect dwelling houses on 18 of the lots in Cain Place. This contract was performed, and Miller & Cain, who claimed to not have received full payment for building the houses, and to recover a balance alleged to be due, commenced and prosecuted to the end the attachment proceedings which resulted in the sale of the undivided one-half of lot 19 in Cain Place to the appellee. Lot 19 had been left vacant. Orrin R. Cain conveyed the title to lot 19 to Bohn and Stevenson, and Bohn conveyed the undivided one-half of said lot to William S. Roberts, who conveyed to Thomas Rowland by quitclaim deed, and Rowland conveyed to one John Stevens, Sr. When the land was purchased of Martha M. Ish, two notes evidencing a portion of the purchase price were executed and delivered to her,--one in the sum of $11,050, and the other $11,450; and to secure their payment a mortgage on the land sold was executed and delivered. The note for $11,450 was subsequently sold to Edward or Sarah Ainscow, and the mortgage in part assigned. During the time the 18 houses were in process of construction, one A. J. Whidden, secretary of the Star Union Lumber Company, was treasurer of the partnership, the owner of Cain Place; and Stevenson, of the partnership, was vice president of the Star Union Lumber Company. One John R. Davis was its president; and Ben W. Davis, a stockholder and director. John R. Davis was also president of the Davis Lumber Company, and he and Ben W. Davis were its owners, directors, and officers. The place of business of the Davis Lumber Company was in Wisconsin, and the Star Union Lumber Company was a branch house located in Omaha. The latter company furnished the lumber which was used for the erection of the 18 houses in Cain Place, and it also made advances or loans of money to the partnership, the owner of Cain Place. During the course of the transactions, more or less connected, from which originated the present litigation, the Star Union Lumber Company assigned its assets to the Davis Lumber Company, and the latter assumed and agreed to pay the debts of the former.

To convey information in regard to the issues litigated, we deem it best to quote to some extent from the pleadings. It was of the allegations of the petition that: “(1) The plaintiff alleged that on April 14, 1890, Stevenson, Bohn, and Spotswood formed a partnership, and acquired title to an undivided one-half of lot 19 in Cain Place, in Omaha, Douglas county, Nebraska, together with other property; that the title was first conveyed to Spotswood, and by him to one Orrin R. Cain, and by Cain to Stevenson and Bohn; that all of these persons held the title in trust for said partnership; that subsequently Spotswood conveyed his interest to Stevenson and Bohn; that all of said instruments were duly recorded in the office of the register of deeds of Douglas county, Nebraska, and were legal and valid conveyances of the parties hereto. (2) That on March 28, 1891, Bohn conveyed to Roberts the title to the undivided one-half of said lot 19, which deed was recorded June 15, 1891, in the office of the register of deeds, and was wholly without consideration, and for the benefit only of the partnership. (3) That on January 2, 1894, Roberts conveyed said title to Thomas Rowland, which deed was recorded April 7, 1894, and was a quitclaim deed, in form, and wholly without consideration, and procured from said Roberts by said Rowland, knowing Roberts held the title in trust for said partnership, and was procured for the purpose of cheating and defrauding the creditors of said firm. (4) That on January 3, 1894, Rowland conveyed the title to John Stevens, Sr., defendant, which deed was recorded April 27, 1894, and was wholly without consideration, and made for the purpose of preventing the creditors of said partnership from recovering payment out of the assets of said partnership, and was fraudulent in fact. (5) That Spotswood executed a purchase-money mortgage upon said lot and other property, which has been paid. Nevertheless, the Davis Lumber Company, a corporation, defendant, had fraudulently procured an assignment of two notes whereon an alleged balance of $3,487.71 was claimed to be due it, and then assigned the notes and mortgage to George A. Davis, defendant; that the assignment was made February 6, and recorded February 14, 1894; that the Davis Lumber Company claims the said mortgage valid upon said lot 19 and other property, although said notes have been fully paid; and that the assignments to the Davis Lumber Company and George A. Davis were without consideration and fraudulent, and were made for the purpose of defeating the claims of the creditors of the firm of Stevenson, Spotswood & Bohn. (6) That John R. Davis and George A. Davis are brothers; that Rowland is in the employ of the Davis Lumber Company; that John Stevens, Sr., is a brother-in-law of John R. and George A. Davis; that the conveyance of Roberts to Rowland, and Rowland to Stevens, Sr., and the assignment to the Davis Lumber Company of said notes, and the assignment by the Davis Lumber Company to George A. Davis of the notes and mortgage securing them, were without consideration, and a part of a fraudulent scheme to cheat and defraud the creditors of said partnership, and prevent the collection of their just demands against the partnership.” There followed allegations relative to the attachment suit, and the sale of the undivided one-half of lot 19 in Cain Place, and its purchase by appellee; also, some other facts to make appear his right to a partition.

In the answer it was pleaded: “The defendants Thomas Rowland, George A. Davis, John Stevens, Sr., John R. Davis Lumber Company, answered on April 10, 1897. They admitted the statements and allegations in paragraph 1 of the petition. (2) Defendants admit that on March 28, 1891, Bohn conveyed to Roberts the undivided one-half interest in lot 19; that said deed was duly recorded on June 15, 1891. Defendants deny that the deed was without consideration and for the benefit of the partnership, and allege that they had no knowledge whereon to form a belief that said transfer was without consideration and for the benefit of the partnership. (3) Defendants admit that on January 2, 1894, Roberts conveyed said undivided one-half of lot 19 to Rowland. Denies the deed was without consideration; that Rowland knew Roberts held the title in trust for said Bohn and the partnership. Denies that Rowland or any of the defendants knew the deed was procured by Roberts from Bohn without consideration. Denies that the deed was procured by Roberts from Bohn, or by Rowland from Roberts, for the purpose of cheating or defrauding the creditors of Stevenson, Bohn & Spotswood, individually or as a partnership. Defendants admit and allege the fact to be that said transfer was made to the said Rowland in trust for the said John R. Davis, and for his use and benefit. (4) Defendants admit that on January 3, 1894, Rowland conveyed the title to the undivided one-half of lot 19 to John...