Shortel v. Young

• Decision Date: 15 February 1888
• Citation: 36 N.W. 572,23 Neb. 408
• Parties: SHORTEL v. YOUNG ET AL.
• Court: Nebraska Supreme Court

23 Neb. 408

36 N.W. 572

SHORTEL

v.YOUNG ET AL.

Supreme Court of Nebraska.

February 15, 1888.

Syllabus by the Court.

Where a wife purchased a tract of land for the sum of $2,000, and made a payment thereon of $200, which was obtained from a married son, who testified that he raised the money from the sale of hogs and wheat from his own farm, the court will not infer fraud in the transaction from the fact that a year previous the husband and father had sold to the son certain personal property, including hogs, particularly where a creditor living in the same county treated such sale as valid by not attacking it.

Held, that the testimony failed to show fraud in the transfer of the property from the father to the son.

A married woman may carry on business, and make contracts in the same manner as if she were unmarried.

An insolvent debtor may emancipate his minor children, and relinquish all claims to their earnings, and a creditor will have no claim to the proceeds of their labor.

Appeal from district court, Burt county; WAKELEY, Judge.

This is a creditor's bill, brought by Catherine A. Shortel, to subject certain real property, the title of which was in the name of Edwina Young, to the payment of a judgment against her husband, Andrew Young. Judgment for plaintiff, and defendants appeal.Thurston & Hall, for appellants.

Charles T. Dickinson, for appellee.

MAXWELL, J.

This is a creditor's bill, brought by the plaintiff against Edwina Young and Andrew Young, to subject certain real estate which it is alleged was conveyed to Edwina Young, but in fact belongs to Andrew Young. Cornelia Barns is a mortgagee of the premises. The plaintiff alleges in her petition that “at the May term, 1879, of the said district court, the said plaintiff recovered a judgment against the defendant Andrew Young for the sum of $1,183.17, the same being a deficiency on confirmation of a sale of mortgaged premises, under a decree of foreclosure of a mortgage in favor of the plaintiff, and against the defendants, Andrew Young and Edwina Young, which judgment is now in full force, and wholly unsatisfied; that on the 12th day of February, 1884, the plaintiff caused an execution to be issued out of the said court against the property of the defendant Andrew Young, which execution was, by the sheriff of said county, returned wholly unsatisfied for want of property whereon to levy; that on the 7th day of May, 1885, the plaintiff caused to be issued out of said court an execution on said judgment against the property of said Andrew Young, and caused the same to be delivered to the sheriff of said county, who returned and filed the same with the clerk of said court, on the 9th day of May, 1885, indorsed as follows:

“ ‘In compliance with the demand herein contained, I did on the 8th day of May, A. D. 1885, make diligent search for, and being unable to find any property of said Andrew Young, either goods and chattels, or lands and tenements, whereon to levy, I herewith make return this 9th day of May, 1885.

ALLEN CROWEN, Sheriff.' ”

“There is now due to the plaintiff on said judgment, from said defendant, the said sum of $1,183.17, with interest at the rate of 12 per cent. per annum, from the 5th day of May, 1879. The defendant Andrew Young is insolvent, and has no property liable to execution to satisfy said judgment; that on the 10th day of October, 1879, the said defendant Andrew Young purchased of one Charles W. Conkling by contract the following described premises, situated in said Burt county, to-wit: The west half of section twenty-six in township twenty-two north, of range nine east, three hundred and twenty acres, for the sum of two thousand dollars, which said defendant paid as follows: At date of contract, $200; on or about Dec. 30, 1880, $144; on or about the 19th day of June, 1882, the balance of the purchase price, with interest to-wit, the sum of $______; that said defendant has occupied and farmed said land continuously since he purchased it in 1879, and has made valuable improvements thereon, and that the same is now worth a large sum of money, viz., $10,000; that the contract, as aforesaid, for the purchase of said land was, by the direction of said Andrew Young, made in the name of the defendant Edwina Young, who is his wife, and that afterwards, to-wit, on the 15th day of June, 1882, in pursuance of the conditions contained in said contract, and the request of said Andrew Young, the said Charles W. Conkling conveyed said premises by warranty deed to said defendant Edwina Young, in whose name the fee is now of record; that the title to said premises was placed in the name of said Edwina Young, without consideration running from her, and at the special instance and request of said Andrew Young, and that the same was done for the purpose of hindering and delaying and defrauding the creditors of said Andrew Young, and, more especially, to prevent or hinder this plaintiff from collecting her judgment as aforesaid, all of which the said Edwina Young well knew; that plaintiff did not learn of the fraud in the purchase and transfer of said premises until at or about the time of the execution and delivery of the deed, as aforesaid, by Charles W. Conkling to said Edwina Young, in 1881. The defendant Cornelia Barns claims an interest in said premises by reason of certain mortgages executed in her favor by the defendants Andrew Young and Edwina Young. Of the extent of said interest the plaintiff is not advised.” There is an appropriate prayer for relief. The defendants answered separately, and the plaintiff filed replies, which need not be noticed.

The testimony tends to show that in the year 1856 Andrew Young settled on a quarter section of land in Burt county, being at that time quite poor. He and his family seem to have been industrious, and in the year 1868 he possessed 200 acres of land in Burt county, and seems to have been in a prosperous condition. The plaintiff and her husband also settled in Burt county about the year 1856, and were possessed of 120 acres of land near or adjoining the farm of Young. In the spring of 1868 Andrew Young purchased the 120 acres belonging to the plaintiff and her husband. The exact consideration does not appear from the testimony, but he and his wife executed a mortgage for the sum of $3,500 upon the 120 acres purchased from the plaintiff and her husband, and the 200 acres possessed by himself, being 320 acres in all, the mortgage to draw interest at the rate of 12 per cent. Young seems to have paid the interest on this mortgage for a number of years, but in the year 1878 an action was brought to foreclose the mortgage, and in April, 1879, a sale was had under the decree, and 320 acres purchased by the plaintiff, the sale confirmed, and a deed ordered and made to the plaintiff, and a deficiency judgment rendered Andrew Young for $1,183.17. Thus, in 11 years, the plaintiff had received considerable interest on the mortgage, had recovered the land sold, and 200 acres in addition, with a judgment for more than a third of the original mortgage. To satisfy this deficiency judgment, the present action is brought, and it sought to trace the money of Andrew Young into the purchase price of the land described in the petition. The testimony shows that Andrew Young has four sons. Andrew Young, Jr., became of age in 1876; his services, however, were required on the farm, and he remained until the fall of 1878, upon the promise that he was to be paid $20 per month and board for his labor. He seems to have diligently performed his part of the contract. So far as the testimony shows, the contract was bona fide, and the price paid not being in excess of the value of the services. Soon after, this son ceased to perform service for his father. He was married, and established a home of his own. The father seems to have turned over to him before that time considerable personal property, and including a large number of hogs, and the son borrowed from a neighbor $600, which he paid to his father to enable him to pay his debts. At this time, there is no pretense that the father was insolvent. The testimony introduced on the part of the plaintiff shows that Andrew Young was an active, enterprising man, who paid his debts, and there is not a scintilla of testimony tending to show any intention on his part to defraud his creditors. After the confirmation of sale under the decree, in the spring of 1879, Andrew Young rented a farm of 40 acres, and as there was not sufficient labor to require the services of his younger sons, and they being anxious to work for others, he waived all further claim to their services. Two of these sons worked for the neighbors during the summer of 1879. In the fall of 1879, the defendant Edwina Young, having a promise of $200 from her...