Morse v. Raben

• Decision Date: 27 June 1889
• Parties: MORSE v. RABEN ET AL.
• Court: Nebraska Supreme Court

27 Neb. 145

42 N.W. 901

MORSE

v.RABEN ET AL.

Supreme Court of Nebraska.

June 27, 1889.

Syllabus by the Court.

In an action in the nature of a creditor's bill, to set aside a deed made to the wife of a judgment debtor by the vendor of real estate in order that the real estate might be applied to the payment of the plaintiff's judgment, there was sufficient evidence presented to the trial court to sustain the finding that the husband, while in a prosperous financial condition, caused to be conveyed to his wife 160 acres of land in the county of B., which conveyance was made in the year 1883; in the year 1886 the wife sold the real estate, realizing by such sale a large increase upon the amount invested at the time of the purchase; that she permitted her husband to take the money received from the sale, and apply it to the payment of the indebtedness of a partnership of which he was a member; that, soon after, the partnership failed, and became insolvent, when the husband repaid to his wife, out of the partnership assets, the money which he had received from her, and which had been devoted to the use of the partnership; that with this money, by direction of the wife, the husband purchased the real estate in controversy, and that they had borrowed a large sum of money upon the real estate, which, together with the money received from the husband, was applied to the construction of the house thereon, rendering the property valuable; that the money expended in purchasing the property, and in constructing the building thereon, was equal to the amount borrowed upon the credit of the property, added to the amount formerly loaned to the husband by the wife. In such case, the decree of the district court dismissing the creditor's bill was affirmed.

Appeal from district court, Hall county; TIFFANY, Judge.C. B. Keller, W. R. Bacon, and A. C. Wakeley, for appellant.

J. H. Smith, for appellees.

REESE, C. J.

This action was instituted in the district court of Hall county, for the purpose of subjecting the middle one-third of lot 3, in block 80, in the city of Grand Island, to the payment of a judgment held by plaintiff against defendant John Raben and one F. J. Engle. A trial was had in the district court, which resulted in a general finding and decree in favor of defendant. Plaintiff appeals to this court. The question presented is one of fact alone. It is shown by the record, substantially, that in the early part of 1885, and prior thereto, defendant John Raben was in a good financial condition, worth, in real estate and personal property, from twenty to thirty thousand dollars. That year, from some cause not fully explained, but attributed to a shrinkage in values of such goods as are usually kept in a general store, and in which business he was engaged at that time, he became embarrassed, and finally insolvent. J. F. Engle was in partnership with him at the time that plaintiff's debts were contracted. On the 5th day of January, 1886, plaintiff recovered a judgment in the county court of Hamilton county against Raben and Engle for the sum of $552.94 damages, and $3.75 costs of suit. A transcript thereof was soon thereafter filed with the clerk of the district court of said county, and entered upon the judgment record of said court. On the 19th day of July, 1887, a transcript of the judgment of the district court was filed in the office of the clerk of the district court of Hall county. Upon the same day execution was issued thereon to the sheriff of Hall county, and, on the 20th, the sheriff returned the execution unsatisfied, stating in such return that, after diligent search, he had been unable to find any goods or chattels, land or tenements, whereon to levy, and had returned said execution after levying it upon the property involved in this action. It was alleged in the petition that, during the year 1886, the defendant John Raben purchased the lots in controversy from John Wallichs, and being insolvent, and there being judgments against him unsatisfied, to the amount of about $8,000, in Hamilton county at the time of the purchase, he caused the legal title to be taken in the name of his wife, Alvina Raben; that the property was purchased by John Raben, one of the firm of Engle & Co., and of which he was a member at the time of the contracting of the debt; and that the title to the property was taken in the name of defendant Alvina for the purpose of defrauding...