Plummer v. Rummel

• Decision Date: 02 May 1889
• Parties: PLUMMER ET AL. v. RUMMEL ET AL.
• Court: Nebraska Supreme Court

26 Neb. 142

42 N.W. 336

PLUMMER ET AL.

v.RUMMEL ET AL.

Supreme Court of Nebraska.

May 2, 1889.

Syllabus by the Court.

1. Where a father in failing circumstances, and unable to pay his debts, conveyed land to his daughter for an alleged consideration stated in the deed of $1,200, held, that it devolved on the daughter to prove the actual consideration paid, and that she purchased the land in good faith.¹

2. Transactions between relatives, by reason of which strangers who have sold goods to some of such relatives will be deprived of payment therefor, will be scrutinized very closely, and the good faith of the same must be clearly established.¹

Appeal from district court, Frontier county; COCHRAN, Judge.G. M. Lambertson and H. Whitmore, for appellants.

George H. Stewart, for appellees.

MAXWELL, J.

This is an action in the nature of a creditors' bill to subject certain real estate, in Frontier county, held in the name of Lillie J. McClay, but which the plaintiffs claim is the property of George Rummel, to the payment of his debts. The plaintiffs for several years have been engaged in business, as wholesale grocers in the city of Lincoln. The defendant Rummel, from some time in the early part of 1887 until February 13, 1888, was engaged in the retail grocery trade in the same place. During the time he was so engaged he purchased goods of the plaintiffs, and became indebted to them in a large amount. To secure credit, he at various times represented to plaintiffs that he was worth certain specified sums, over and above all indebtedness, and that he owned land in Frontier county. On the 13th day of February, 1888, he failed in business, and, to secure in part the claim of the plaintiffs, he executed to them a chattel mortgage upon his stock of goods for the sum of $1,550. The stock was sold, and the proceeds applied upon the debt, leaving a balance of about $775.40 still due to plaintiffs. Judgment was afterwards obtained in the county court of Lancaster county for this sum, and transcripts filed in the district courts of both Lancaster and Frontier counties. Executions were issued, and returned unsatisfied. By plaintiffs' direction, execution was then levied on certain lands in Frontier county, held in the name of Lillie McClay and this action commenced to subject it to the payment of plaintiffs' claim. On the trial of the cause, judgment was rendered in favor of the defendants, and the action dismissed. An examination of the records of the title to the land shows that Mr. Rummel had received a deed to the land in September, 1887, and that he had conveyed the land to his daughter, Lillie J. McClay, on December 21, 1887, which deed was not filed for record until February 16, 1888, three days after Mr. Rummel's failure. The consideration stated in the deed is $1,200, and the grantee assumed a mortgage of $425, then on the land. The plaintiffs contend that this conveyance to Mrs. McClay was given for no consideration, was to hinder and delay creditors, and therefore fraudulent and void as to them. In support of their position, they prove that Mr. Rummel had represented to them at various times, both before and after the date of the deed to Mrs. McClay, and while the debt was being contracted, that he owned this land in Frontier county; that he tried to sell it, and put it in the hands of parties in Lincoln to sell after the 21st of December; that after his failure he claimed to have control of the land; and that it was all he had saved from the wreck. It was also shown that the title had actually remained of record in him until three days after his failure; also that he had executed to certain others of his creditors, after his failure, a mortgage on land in Illinois, which he claimed he had previously conveyed to his son, but which he still owned.

Mrs. McClay, on cross-examination, testified in regard to the transaction: “ Answer. My husband and my father had a land deal for some goods coming to my husband. There still was $262.50. When he came home he told me I could have that, and turned it over to me; and when I went back to Lincoln I told my father I would take the land, as I was wishing to purchase land in Lincoln, and thought I could use the land in that case. Question. Then you never paid your father anything? Answer. I paid him $262.50. Q. Did you have $262.50 in money or in property of any kind? A. I did; yes, sir. Q. What was it? A. It is in land. Q. In what shape was it in at the time you gave it to your father? A. In the same shape it is now; I owed nothing on it. Q. Then you mean to have the court understand that your husband told you you might have $262.50 that your father owed to your husband? A. Yes, sir. Q. And that you received, then, from your father a deed to this land, after that? A. I did. Q. Then you never paid your husband anything for this land? A. My husband and I have deals back and forth in land. I have my own property; he has his. Q. Did you ever pay your husband anything for this $262.50? A. Why, he was owing me, at the time; so it didn't make any difference.” Mr. McClay also testified, on his direct examination. “ Question. What is the value of that land, or what was it on the 21st day of December, 1887? Answer. Well, I bought it about two months, I think, before that, for $30, on the...