Steele v. Coon

• Decision Date: 15 October 1889
• Citation: 27 Neb. 586,43 N.W. 411
• Parties: STEELE ET AL. v. COON ET AL.
• Court: Nebraska Supreme Court

27 Neb. 586

43 N.W. 411

STEELE ET AL.

v.COON ET AL.

Supreme Court of Nebraska.

Oct. 15, 1889.

Syllabus by the Court.

1. A deed not fraudulent at first, may become so afterwards, by being concealed, or not pursued, by which means creditors have been drawn in to lend their money. Hildreth v. Sands, 2 Johns. Ch. 35.

2. Upon the facts stated in the opinion, held, that the first set of conveyances therein referred to, though not fraudulent at first, became so afterwards by being withheld from the records.

3. Held, also, that the second deed of the farm therein referred to should be upheld to the extent of the money actually advanced and paid by R. C. to A. F. C.

4. Held, further, that the deed of the home stead from R. C. to A. F. C., under the facts and circumstances of the case, could not be deemed a consideration to the extent of the value of the same for the conveyance of the farm by A. F. C.

5. There being no evidence of the value of the estate in remainder to be vested in the heirs of the holder of the general title to said homestead, upon the death of the survivor, as between husband and wife, the same will not be considered as adding to the other consideration for the conveyance of the farm.S. H. Steele, R. S. Norval, and J. W. McLoud, for appellants.

J. C. Robberts and A. J. Evans, for appellees.

COBB, J.

This cause was appealed from the judgment of the district court of Butler county by the First National Bank of Seward, Samuel H. Steele, and David Belsley, who exhibited their creditors' bills in the court below, against Archibald F. Coon and Rebecca, his wife, Frank R. Coon, a minor, and J. G. Ross, setting up that on August 22, 1884, Archibald F. Coon was the owner of the S. W. 1/4 of section 30, township 15 N., range 3 E. of the sixth P. M., of record in his name in said county, that with William H. Westoverand J. Robert Williams he executed his promissory note to said bank for $1,500, due October 22, 1884, with 10 per cent. interest; that credit for said loan was given them on the faith of said Coon being the owner of said real property; that on November 17, 1885, said bank recovered judgment on said note against the makers in the district court of Seward county, Neb., for the sum of $1,660 and $9.53 costs, with interest thereon at 10 per cent. per annum from the date of judgment, which remains unpaid; that on June 29, 1886, a transcript of said judgment was filed in the district court of Butler county, and execution was issued against said Coon, which was duly served, and returned “ nulla bona,” but was levied upon said land; that on June 24, 1878, the government of the United States patented said land to said Coon; that on October 13, 1884, said Coon, and his wife, Rebecca, without consideration, and with intent to defraud the First National Bank of Seward, and other creditors, pretended to convey said land to Jacob G. Ross, with like intent on his part, who, without consideration, and for like purposes, pretended to convey said land to Rebecca Coon and Frank R. Coon; that at the time of such fraudulent conveyances Archibald F. Coon was indebted to various creditors, $6,000, and the judgment debtors, Westover and Williams, were entirely insolvent, the latter being out of the state, and a fugitive from justice; that Archibald F. Coon has no other property except said land, which, if free of incumbrance, and with an unclouded title, is worth about $8,000, out of which said judgment can be made, but which, by reason of said fraudulent conveyances, could not be sold to satisfy the same; with prayer that the conveyances be set aside, and for general and complete relief. The bill of Samuel H. Steele represents his judgment (by proceedings in attachment commenced October 25, 1884) against Archibald F. Coon and William H. Westover for the sum of $1,535.66, with interest at 10 per cent. per annum, rendered in the district court of Butler county, December 8, 1884, and levied upon the same property, with prayer for like relief. That of David Belsley represents his judgment against Archibald F. Coon and William H. Westover for the sum of $1,264.30, on note made by the parties, August 12, 1884, for $990, with interest at 10 per cent. per annum, rendered in the district court of Butler county, June 6, 1887, with prayer for like relief. The record of the judgment of Sumner & Co. on note of Westover, Williams, and Coon, dated April 22, 1884, for $2,000, at 10 per cent. interest, in district court of Butler county, June 6, 1887, for the sum of $2,633.33 and $24.83 costs, was filed in the case as lien against the real estate in the creditors' bills herein.

The defendants answered, setting up that on October 13, 1884, A. F. Coon and Rebecca, as husband and wife, executed and delivered certain deeds of conveyance of said land to J. G. Ross at the special instance and request of Rebecca. That the same were made in good faith, and for the valuable consideration of $4,000, and on March 27, 1883, the land was deeded by Rebecca Coon and said Ross to Rebecca Coon and Frank R. Coon jointly. That Rebecca Coon unintentionally failed to have her deeds recorded, and the same became lost without the intention of delaying or defrauding the creditors of A. F. Coon, or aiding him to contract future indebtedness. That at the time of said conveyances to Ross, and by him to Rebecca and Frank R. Coon, defendant A. F. Coon was not indebted to any person or persons, and did not after that time become indebted, on his own account, or that of either of the defendants, or of any other person in whom he was pecuniarily interested; and all of the debts contracted after the execution of said conveyances were security debts for others, from which the defendant A. F. Coon neither received, nor was promised, nor expected any consideration for himself or any other person; and the judgment which the plaintiffs recovered and hold against him is a security debt, for which these defendants, nor either of them, received any consideration whatever. That the debt so contracted to the plaintiffs, as well as all other debts which A. F. Coon may now owe as security for others, were contracted without the knowledge or consent of the co-defendants, or either of them. It is further set up that at the time A. F. Coon first conveyed the land to Ross, Rebecca Coon was his wife, and the conveyances were made for the express purpose of being reconveyed to the wife and her son, Frank R. Coon. At the time, and prior thereto, Rebecca Coon was the owner of lots 1, 4, and 5, in block 47, in David City, which were of the value of $1,600, purchased by her of one Rolph, with her own money, from her father's estate, in the month of June, 1881. That as part consideration for the land in controversy, on March 27, 1883, she conveyed said town lots to Ross, to be conveyed to A. F. Coon, which was executed on the same day. That as a further consideration for the land she paid A. F. Coon, on the same day, the sum of $850, and as a further consideration she discharged and released A. F. Coon from an obligation and debt which was owing by him to her of $1,700, contracted as follows, in cash: In the year 1867, $500; in the year 1872, $100; in the year 1876, $100; in the year 1880, $500; in the year 1883, $168; which sums were received from her father's estate, and were loaned by her to A. F. Coon under an agreement between them, at said times, that the same should be repaid. It is also set up that the deeds and conveyances made on the 13th of October, 1884, by the defendants, conveying the land in controversy, were so made in lieu and place of those of March 27, 1883, which had become lost. Defendants deny all allegations of fraud, and deny that A. F. Coon was the owner of the land in controversy at the time of signing the note on which the plaintiffs' judgments are based, or that the land, at that time, was standing in his name; with prayer for complete discharge from the complaints of the petitioner's bill.

The First National Bank of Seward made reply, denying the allegations of the defendants' answer, except that the deeds mentioned were executed March 27, 1883, and that those of October 13, 1884, were in lieu of those of March 27, 1883, and that defendant Coon was a surety on the note taken by plaintiffs, on which the judgment is based; and avers that the defendants, by reason of their failure to place on record in Butler county, Neb., the deeds alleged to have been made March 27, 1883, until long after contracting the indebtedness to plaintiff, which was contracted upon the responsibility of A. F. Coon, and upon the fact that the title to the land mentioned stood in his name, upon which the plaintiff relied that he was the owner thereof, and had no means of knowledge that A. F. Coon had ever made the deeds of date March 27, 1883, as stated in the answer; and by reason of the fraudulent acts of the defendants in negligently and carelessly withholding from the records the deed of March 27, 1883,--are estopped from claiming any rights whatever under said deeds, or any interest in said land as against the plaintiffs.

The answer of defendants to the bills of Steele and Belsley were of the same tenor and defense as that stated in the case of the bank; that of the minor defendant, Frank R. Coon, was by guardian ad litem.

There was a stipulation by the parties in the court below that the several cases of the First National Bank of Seward, Samuel H. Steele, David Belsley, and Sumner & Co. against Archibald F. Coon and others shall be consolidated for the purposes of trial and the final determination of the rights of the several parties as of the 14th of July, 1887. That in case of Sumner & Co. and Belsley the defendants shall answer as of that date, to the same effect as in the cases of the bank and of Steele, and replies in all cases...