Smith v. Schmitz
| Decision Date | 11 November 1880 |
| Citation | 7 N.W. 329,10 Neb. 600 |
| Parties | MONROE E. SMITH AND ADELBERT CRITTENDEN, APPELLEES, v. WILLIAM SCHMITZ AND CHARLES SCHMITZ, APPELLANTS |
| Court | Nebraska Supreme Court |
THIS was an action in equity brought in the district court of Butler county to set aside an alleged fraudulent conveyance of certain real property by defendant William Schmitz to defendant Charles Schmitz, and subject the same to the payment of a judgment recovered by plaintiffs against "The Alexis Mercantile Association," and the individual stockholders thereof, of whom William Schmitz was one. Plaintiffs had a decree in their favor in the court below before POST, J., and the defendants appeal.
Decree of the district court reversed, and cause dismissed.
W. S Geer and Dean & Garfield, for appellants, cited Gen. Stat 540. Brinkerhoff v. Brown, 4 Johns. Ch., 671. Krichbaum v. Bridges, 1 Iowa 14. Brink v Morton, 2 Iowa 411. Dussuame v. Burnett, 5 Iowa 95. Crippen v. Hudson, 13 N.Y. 161. Greenwood v Broadhead, 8 Barb. 593. North Amer. Fire Ins. Co. v. Graham, 5 Sand., 197. Reubens v. Joel, 13 N.Y. 488. Brooks v. Stone, 19 Howard Pr., 395. Howell v. Cooper, 37 Barb. 582. Roads v. Symms, 1 Ohio 281. Gen. Stat., 562, sec. 221. Smith v. Rumsey, 33 Mich. 183. Thornton v. Hook, 36 Cal. 223. Derby v. Weyrich, 8 Neb. 174. Green v. Farrar, 5 N. W. R., 643. Voorhies v. Childs' Executors, 17 N.Y. 354. Tootle v. Dunn, 6 Neb. 93. Galbreath v. Cook, 30 Ark. 417.
Clinton, Hart & Brewer, for appellees, cited Crowell v. Johnson, 2 Neb. 154. Freeman on Judgments, 524. Wells Res. Adjudicata, sec. 556. Woodruff v. Taylor, 20 Vt. 65. Rector v. Rotton, 3 Neb. 172. Rudolf v. McDonald, 6 Neb. 164. Freeman on Judgments, 182. Kerr on Fraud, 199. Bump on Fraudulent Conveyances, 230, and cases cited. Sillyman v. King, 36 Iowa 207. Falconberry v. McIlravy, 36 Id., 488. Throckmorton v. Rider, 42 Id., 84.
There are several questions of great importance presented and ably argued by counsel in this case, but which it is not deemed necessary to pass upon, as they do not involve the merits of the controversy between the parties. Both of the defendants in their answers allege that the defendant Charles Schmitz acquired title to the lands in question under and by virtue of the laws of the United States granting homesteads to actual settlers upon the public domain; that the patent thereof issued on the twenty-fifth day of July, 1876, and that the claim or demand of the plaintiffs, or a large part of it, accrued prior to the issuance of the said patent. These allegations are not denied by the plaintiffs, specifically or generally, and therefore stand admitted. Section 2,295 of the Revised Statutes of the United States (the preceding sections of the same chapter (5) being devoted to the method of acquiring title under the homestead law) provides that "no lands acquired under the provisions of this chapter shall, in any event, become liable to the satisfaction of any debt contracted prior to the issuing of the patent therefor."
It will scarcely be claimed, if the whole of the plaintiffs' demand accrued, or--to follow the language of the statute--the debt was contracted prior to the issuance of the said patent, that this action will lie. Because if the plaintiffs' debt or claim is one for which the land in question shall in no event become liable for the satisfaction of, then it would be idle for this court to inquire whether the sale from William to Charles Schmitz was made in good faith or not. The plaintiffs, by their pleadings, admit that "a large part" of their claim falls within the above description. The plaintiffs are the moving parties. They come invoking the extraordinary power of a court of equity to set aside and declare fraudulent and void, as to them, a deed of conveyance entered into with all the solemnities of law and spread upon the public records, and to declare the land liable to be sold to pay their claim. The law says that as to "a great part" of their claim this may not be done. They have, upon their own motion, consolidated their claim--that part as to which this might have been done, with that "great part" as to which it might not be done--into one judgment. It is therefore not within the equitable power of the court to grant that measure of relief which, so far as the point which I am now covering is concerned, the plaintiffs might otherwise have been entitled to.
But it is doubtful that in any event the said lands could be held liable to the satisfaction of the said debt. The liability of the defendant William Schmitz arose under the provision of the statute, which is in the following words: "Every corporation hereafter created shall give notice annually, in some newspaper printed in the county or counties in which the business is transacted, and in case there is no newspaper printed therein, then in the nearest paper in the state, of the amount of all the existing debts of the corporation which notice shall be signed by the...
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