Perry v. Neel

Decision Date13 February 1934
Docket Number28628
Citation252 N.W. 812,126 Neb. 106
PartiesLOLLA PERRY, ADMINISTRATRIX, APPELLANT AND CROSS-APPELLEE, v. IRA E. NEEL ET AL., APPELLEES AND CROSS-APPELLEES: L. H. CHENEY, ADMINISTRATOR, CROSS-APPELLANT
CourtNebraska Supreme Court

APPEAL from the district court for Red Willow county: CHARLES E ELDRED, JUDGE. Affirmed in part, and reversed in part, and remanded, with directions.

AFFIRMED IN PART, AND REVERSED IN PART.

Syllabus by the Court.

1. Failure to make proper objection to the testimony of a witness known to be disqualified under section 20-1202, Comp. St. 1929, waives the right to exclude his testimony.

2. An equitable lien will not arise in favor of one who loans or advances money to another to pay the purchase price of real estate, in the absence of any agreement to give a lien.

3. In an action to set aside transfers of property, made during the marriage relation, by a husband to a son, which transfers are alleged to have been made for the purpose of fraudulently depriving the wife of her marital rights under the law of descent, the burden is upon the plaintiff to establish by a preponderance of the evidence that the husband was actuated by bad motives and fraudulent intent to deprive the wife of her marital rights, and that the entire transaction was a mere device by which he sought to defraud her.

Appeal from District Court, Red Willow County; Eldred Judge.

Action by Lolla Perry, as administratrix with will annexed of the last will and testament of the Estate of Eliza Neel, deceased, against Ira E. Neel, John R. Neel, and others. During the pendency of the action John R. Neel died, and the action was revived in the name of L. H. Cheney, as administrator of the estate of John R. Neel, deceased. From the decree plaintiff appeals, and L. H. Cheney, as administrator of the Estate of John R. Neel, deceased, cross-appeals.

Affirmed in part and reversed in part, and cause remanded, with directions.

Butler & James and Perry, Van Pelt & Marti, for appellant.

L. H. Cheney, for cross-appellant.

Cordeal, Colfer & Russell, contra.

Heard before GOOD AND EBERLY, JJ., and MESSMORE, RAPER and YEAGER, District Judges.

OPINION

RAPER, District Judge.

This action was brought by plaintiff, Lolla Perry, as administratrix of the estate of Eliza Neel, to subject to the payment of a judgment for alimony rendered in favor of Eliza Neel against John R. Neel two tracts of land, one of them being near the village of Bartley, a farm of 90 acres, which will be designated as the Bartley property; the other a farm of 232 acres near the town of Red Willow, and will be designated as the Red Willow property, both tracts being in Red Willow county.

In the first cause of action in her petition, plaintiff alleges that she is the duly qualified and acting administratrix with the will annexed of the estate of Eliza Neel; that, since this action was begun, John R. Neel died and said action was revived in the name of L. H. Cheney as his administrator; that on April 13, 1929, in the district court for Lancaster county, Nebraska, Eliza Neel recovered a judgment against John R. Neel in the sum of $ 4,000 as permanent alimony; that said judgment was revived in the name of plaintiff on the 20th day of June, 1930; that a transcript of said judgment was duly filed in the office of the clerk of the district court for Red Willow county on the 26th day of June, 1930; that execution was issued on said judgment which execution was returned unsatisfied on November 16, 1930, by the sheriff; and that said judgment is in full force and unpaid.

Plaintiff further alleges that, prior to October 20, 1924, the defendant John R. Neel was the sole owner (except the homestead right of Eliza Neel) of a property known as the "hospital property" in the village of Holbrook, Nebraska, and, on October 20, 1924, John R. Neel exchanged the "hospital property" for the 90-acre tract of land known as the Bartley property, and that, without the knowledge of Eliza Neel and without any consideration, John R. Neel caused said property to be conveyed to Ira E. Neel, and that said conveyance was made with the intent to hinder, delay, and defraud Eliza Neel in obtaining her marital rights; that, in fact, Ira E. Neel is not the owner of said land but only holds title thereto as trustee for John R. Neel.

The second cause of action alleges that, on January 1, 1921, John R. Neel was the owner of 232 acres of land designated as the Red Willow land; that this land was conveyed to Ira E. Neel by John R. Neel and Eliza Neel, without consideration except two notes for $ 13,000 and $ 6,000, respectively, secured by real estate mortgages, and that these notes were dated February 21, 1921, one of which mortgages covered the Red Willow land and the other mortgage covering other land; that Eliza Neel, when she joined in said conveyance, was unaware of the fact that said conveyance was for the purpose of fraudulently converting said real estate into personal property, and that she joined in the conveyance only on the representation of Ira E. Neel that the notes and mortgages would remain in full force until they were paid; that thereafter, unknown to Eliza Neel, Ira E. Neel secured from John R. Neel releases of the said two mortgages; that said releases were without any consideration, and that, on or about December 29, 1921, defendants Ira E. Neel and W. Frank Neel, in order to deprive Eliza Neel of her distributive share under the law of descent, induced John R. Neel to cancel the mortgages of $ 19,000 under the agreement of Ira E. Neel and W. Frank Neel to pay interest only on the principal; that the consideration for the canceling of the indebtedness and releasing of the mortgages was inadequate and unconscionable and amounted to a fraud upon Eliza Neel and was done for the purpose of depriving Eliza Neel of her marital rights, and to evade the law of descent; that Eliza Neel was not a party to said transaction, had no knowledge thereof, did not assent thereto, but was led to believe that her marital rights had been protected. She prays that, as to the "Bartley property," Ira E. Neel be adjudged to hold it in trust for John R. Neel, and that the releases of the mortgages on the "Red Willow property" be canceled and set aside and Ira E. Neel adjudged to hold the property in trust for John R. Neel and required to account for all rents received while in possession of said properties, and that same be offset against any claim of Ira E. Neel against John R. Neel.

The answer to the first cause of action admits the judgment for alimony, the filing of the transcript and the issuance and return of execution thereon, and admits that, on October 20, 1924, John R. Neel held the record title to the Holbrook property, and that on said date he exchanged it for the Bartley property; and denies other allegations of the petition. Then, as to first cause of action, the answer alleges that, prior to September 16, 1910, one Penelope Neel owned certain property in Indianola, and that on that date she died intestate leaving as her only heirs John R. Neel, her husband, and Ira E. Neel and W. Frank Neel; that, on December 29, 1915, John R., Ira E., and W. Frank Neel joined in a conveyance of the Indianola property for the Holbrook property, title to which was taken in the name of John R. Neel, who was in fact owner only of an undivided one-third interest, Ira E. and W. Frank owning the remaining two-thirds; that, on October 20, 1924, John R. Neel, on behalf of himself and Ira E. and W. Frank Neel, exchanged the Holbrook property for the Bartley land, the consideration expressed in the exchange contract for the Holbrook property was $ 6,000, and for the Bartley land $ 9,000; and that Ira E. Neel furnished the money with which the difference, $ 3,000, was paid; that the deed for the Bartley property was duly filed for record in the office of the county clerk of Red Willow county on April 4, 1925, and became and ever since has been notice to Eliza Neel of the rights of Ira E. Neel therein; that, at the institution of this suit, more than 5 years had elapsed since the filing of said deed, and any right of action Eliza Neel had was barred by the statute of limitations.

The answer to the second cause of action alleges that, on January 1, 1921, John R. Neel was the owner of the Red Willow land; that the land did not yield sufficient income to properly maintain him and Eliza Neel; that, being indebted to Ira E. Neel in the sum of $ 1,000, he proposed that he and Eliza Neel should execute deed to Ira and the latter to execute mortgages aggregating $ 19,000, bearing interest at 6 per cent.; that, as a result of this suggestion, John R. Neel and Eliza Neel deeded the Red Willow property to Ira E. Neel for the expressed consideration of $ 20,000, and Ira E. Neel executed to John R. Neel the two mortgages for $ 13,000 and $ 6,000; that, on December 29, 1921, in consideration of the release of the two mortgages, John R. Neel and Ira E. and W. Frank Neel entered into a contract whereby W. Frank Neel and Ira E. Neel each agreed to pay to John R. Neel the sum of $ 50 a month as long as he lived; that, in consideration of the agreement made by W. Frank Neel, Ira E. Neel conveyed to W. Frank Neel certain real estate; that John R. Neel than executed releases of the two mortgages which were recorded in the office of the county clerk of Red Willow county, and these releases have ever since been notice to Eliza Neel, and that at the institution of this suit more than 10 years had elapsed, and that any right of action Eliza Neel had was barred by the statute of limitations. The answer does not ask for affirmative relief, but prays that plaintiff's action be dismissed.

Plaintiff for reply denies the allegations of...

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