Savage v. Hazard

• Decision Date: 26 May 1881
• Parties: SAVAGE v. HAZARD.
• Court: Nebraska Supreme Court

11 Neb. 323

9 N.W. 83

SAVAGE

v.HAZARD.

Supreme Court of Nebraska.

Filed May 26, 1881.

Appeal from Gage county.

Hale & Hardy and E. Wakeley, for plaintiff.

Colby & Hazlett and A. J. Poppleton, for defendant.

MAXWELL, C. J.

This is an action to quiet title. It appears from the record that on the twenty-first day of July, 1876, the defendant herein, Jonas B. Aiken, commenced an action by attachment in the district court of Gage county against Charles A. Savage, to recover the sum of $11,000 and interest, and on the twenty-fourth of that month caused certain real estate situate in Gage county to be levied upon under the attachment as the property of Charles A. Savage. Service was had by publication, and on the twenty-fifth of December, 1876, judgment by default was taken against Savage for the sum of $11,308, and the property attached was ordered sold. A sale was thereafter had of the attached property, which was purchased by the defendant Jonas B. Aiken, and on the twelfth day of May, 1877, the sale was confirmed and a deed made to the purchaser. On the twenty-sixth day of November, 1875, Charles A. Savage conveyed the lands in controversy to his brother, William T. Savage, by warranty deed, for an expressed consideration of $10,000. On the sixteenth day of August, 1876, William T. Savage conveyed by quitclaim deed the land in controversy to Olivia T. Savage, the wife of Charles A. Savage, the consideration expressed in the deed being the sum of $5,000. On the twenty-seventh day of June, 1877, the plaintiff commenced her action in the district court of Gage county to relieve the cloud from her title to the real estate in controversy caused by the sheriff's deed to the defendant Jonas B. Aiken, and to quiet and confirm her title to said real estate.

The defendant Jonas B. Aiken answered the plaintiff's petition, alleging, among other things, that Charles A. Savage “deeded said lands to his brother, William T. Savage, on the twenty-sixth day of November, A. D. 1875, without receiving any consideration therefor; and the said William T. Savage, fraudulently colluding with the said Charles A. Savage for the purpose of hindering, delaying, and defrauding this defendant, deeded said lands to Olivia T. Savage, the plaintiff and wife of the said Charles A. Savage, without receiving any consideration therefor, etc. These facts are denied in the reply. It will be seen that the principal question in the case is whether or not William T. Savage was a bona fide purchaser of the lands in controversy. He testifies that he came to Illinois in September, 1874. His brother, Charles A., at that time being very sick, and supposing that he was about to die, wished to give Aiken one-half of those lands, provided Aiken would release his indebtedness to him (Aiken) and would pay about $1,500 encumbrance on the land. The other half of the lands he gave to the witness and his sisters. He also testifies that he gave his note for these lands, in the sum...