Peterson v. Wahlquist
| Decision Date | 20 July 1933 |
| Docket Number | 28414 |
| Citation | 249 N.W. 678,125 Neb. 247 |
| Parties | VAN E. PETERSON, RECEIVER, APPELLANT, v. CHARLES B. WAHLQUIST ET AL., APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Adams county: J. W. JAMES, JUDGE. Reversed.
REVERSED.
Syllabus by the Court.
1. The sufficiency of a petition cannot be raised by incorporating a demurrer in the answer.
2. A petition will be liberally construed when its sufficiency is first attacked by objection to introduction of evidence.
3. In a creditor's suit attacking a voluntary conveyance of realty by judgment debtor to wife, the petition may be sufficient without charging fraudulent intent, or fraud, in literal terms, where the facts pleaded are sufficient to show actual fraud.
4. Fraudulent intent may be established by proof of facts from which such inference may be reasonably drawn.
5. One is conclusively presumed to intend the obvious and probable consequences of his voluntary act.
6. The contingent liability of a bank stockholder for the amount of his stock, when imposed by the Constitution and his subscription contract, makes depositors existing creditors within the meaning of the rule that a voluntary conveyance of all his property to his wife, without consideration, is fraudulent as to them.
7. Real estate, comprising all the property of a bank stockholder, voluntarily conveyed to his wife, without consideration, when the bank is solvent, may be subjected to the payment of a judgment in favor of bank creditors on his liability to them for the amount of his stock, though the contingent claim for such liability became absolute after the transfers.
8. " A contingent liability is as fully protected against fraudulent and voluntary conveyances as a claim certain and absolute, and whoever has a claim or demand arising out of a pre-existing contract, although it may be contingent, is a creditor whose rights are affected by such conveyances and can avoid them when the contingency happens upon which the claim depends." 27 C. J. 473.
Appeal from District Court, Adams County; James, Judge.
Suit by Van E. Peterson, as receiver of the Bank of Commerce of Hastings, against Charles B. Wahlquist and wife. From a judgment dismissing the suit, the plaintiff appeals.
Reversed, and cause remanded for further proceedings in accordance with opinion.
Butler & James, Stiner & Boslaugh and Edmund Nuss, for appellant.
R. O. Canaday and J. M. Turbyfill, contra.
Heard before GOSS, C. J., ROSE, GOOD, EBERLY and DAY, JJ., and BEGLEY and MEYER, District Judges.
This is a suit in the nature of a creditor's bill. Van E. Peterson, receiver of the Bank of Commerce at Hastings, is plaintiff and Charles B. Wahlquist and his wife, Estelle B. Wahlquist, are defendants. After the receiver exhausted the assets of the bank in partial payment of its debts, unpaid claims of creditors aggregated $ 334,782.21. The debts were incurred while Charles B. Wahlquist owned 37 1/2 shares of the bank's stock, each for $ 100. On his stockholder's liability to the amount of his stock, which the Constitution and the stock subscription imposed, plaintiff recovered a judgment against him January 20, 1930, for $ 3,750. Execution on the judgment was issued March 28, 1930, and returned wholly unsatisfied. Beginning March 29, 1923, the wife, through mesne conveyances of all her husband's real estate, without paying him any consideration, acquired the legal title to lot 7 and part of lots 8 to 12, inclusive, block 18, original town of Hastings, as described in the petition. The purpose of this suit is to subject this realty to the payment of the judgment.
This suit was defended on the grounds that the petition did not state facts sufficient to constitute a cause of action against defendants; that fraud was not pleaded; that intent to delay or defraud creditors in collecting their claims was not stated; that the bank was solvent when the husband parted with his title and when he had a right to make a gift to his wife; that his liability as a stockholder was contingent and did not become absolute until long after he transferred his realty in good faith without any fraudulent intent or reason to anticipate the future insolvency of the bank; that plaintiff is not such a creditor as is entitled to subject the realty to the payment of the judgment.
Upon a trial of the cause, the district court found the issues in favor of defendants and dismissed the action. Plaintiff appealed.
To justify the dismissal of the cause, defendants argue that the petition is fatally defective in failing to plead in direct terms active fraud, fraudulent intent and an absolute liability of the stockholder when he parted with title to his real estate. This position does not seem to be tenable. The petition pleads the husband's continuous ownership of the stock from a time earlier than his execution of the deeds; his liability as stockholder; his conveyances without consideration; the insolvency of the bank; the insufficiency of assets to pay claims of creditors; the judgment on his liability as a stockholder; the return of an execution wholly unsatisfied; and the wife's title subject to the judgment. The petition alleges also that the husband owned real estate prior to March 29, 1923. The sheriff's return, in connection with other facts pleaded, shows that he had parted with the legal title to all his property before the execution was returned, thus depriving himself of all means to meet his contingent or resulting, absolute obligations to creditors of the bank.
Defendants attempted, by incorporating a demurrer in their answer, to challenge the sufficiency of the petition. Under the Nebraska Code, a demurrer is not a proper part of an answer, and should be disregarded. Fidelity & Deposit Co. v Parkinson, 68 Neb. 319, 94 N.W. 120. Defendants further challenge the sufficiency of the...
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