Veeder v. Mckinley-Lanning Loan & Trust Company

• Decision Date: 05 June 1901
• Docket Number: 9,361
• Citation: 86 N.W. 982,61 Neb. 892
• Parties: WILLIAM E. VEEDER, APPELLANT, v. MCKINLEY-LANNING LOAN & TRUST COMPANY ET AL., APPELLEES
• Court: Nebraska Supreme Court

86 N.W. 982

61 Neb. 892

WILLIAM E. VEEDER, APPELLANT, v. MCKINLEY-LANNING LOAN & TRUST COMPANY ET AL., APPELLEES

No. 9,361

Supreme Court of Nebraska

June 5, 1901

APPEAL from the district court for Hall county. Heard below before THOMPSON, J. Reversed.

REVERSED AND REMANDED.

Othman A. Abbott and Johnson & Wellman, for appellants.

W. H Platt, W. R. Morris and Tibbets Bros., Morey & Ferris contra.

HOLCOMB J. SULLIVAN, J., concurring.

OPINION

HOLCOMB, J.

Appellant, plaintiff below, brought an action in equity, under the provisions of section 57, chapter 73, Compiled Statutes of 1899, for the purpose of having adjudicated and determined the title and interest of several defendants to certain real estate, described in the petition, adverse to him, and to have the title thereto quieted in his favor, subject to the life estate of his father, as tenant by curtesy of his deceased wife, mother of the appellant.

Briefly, the salient features of the case may be outlined as follows: The plaintiff is the son and heir at law of Emma V. Veeder, deceased, who died possessed of a title in fee simple to the real estate which is the subject of the suit. Defendant Aaron B. Veeder was the husband of Emma V. Veeder, and is the plaintiff's father. The son arrived at his majority shortly prior to the commencement of the present action. It is averred, in substance, in the petition that after the death of the mother and wife, who died seized of the real estate therein described, leaving the plaintiff as her sole heir at law, and without any debts or other demands against the estate, that the defendant, Aaron B. Veeder, procured letters of administration of the intestate's estate to be issued to him, and thereafter filed against the estate a fraudulent and pretended claim in favor of himself, and obtained the allowance thereof as a legal and valid claim against the estate, and afterward made application to the district court of Hall county, the county in which letters of administration had been granted, for a license to sell the real estate to pay the debt so allowed and the cost of administration, which application was heard on an order to show cause before a judge at chambers in another county; that no license had been granted, and, if granted, the same was void for want of jurisdiction. It is further averred that thereafter a pretended sale of the real estate was made to one Thomas J. Hurford for the alleged consideration of $ 3,100, which the said Veeder caused to be ratified and approved by the district court of Hall county, and an administrator's deed executed and acknowledged in favor of the said Hurford; that such pretended sale was without consideration and was made for the use and benefit of the administrator and in pursuance of a fraudulent design to defraud the estate out of said real estate and to permit the administrator to acquire title thereto in his own right; that on the subsequent day the said real estate was by the said Hurford, the pretended purchaser, conveyed by warranty deed to the said Aaron B. Veeder, without consideration and for the purpose of cheating and defrauding the estate and the plaintiff, as heir at law, out of his interest and estate therein; that said two pretended sales were in pursuance of a prior agreement between the said administrator and the said Hurford, with the intent to defraud the estate and the plaintiff out of his interest therein; that no return was made to the probate court, nor were any of the proceeds of the sale ever accounted for; that afterwards the said Aaron B. Veeder and his then wife conveyed one acre of said tract of land to school district No. 15, of Hall county, defendant, which claims title thereto by virtue of said deed of conveyance, which, it is alleged, conveyed only the life estate of the said grantor therein; that afterwards the said Veeder and his then wife by mortgage deed conveyed unto the Omaha Savings Bank, defendant, said real estate for the consideration of $ 1,000, and that said defendant secured thereby only a lien on and interest in the life estate of the said grantor. It also appears that one D. L. Johnson, one of the defendants, claims some interest in the land by reason of his purchase of certain coupons for interest on the debt secured by the conveyance to the defendant, the Omaha Savings Bank; that afterwards another mortgage deed was executed on said real estate in favor of the defendant, Susan J. Fillion, for the consideration of $ 3,000 which, it is alleged, gave to the mortgagee no greater title to or interest in said land than the life estate of the grantor. The defendant, the McKinley-Lanning Loan & Trust Company, having obtained a judgment against Aaron B. Veeder, levied upon and sold the land as upon execution as the property of the said Veeder; but it is alleged that the said defendant thereby acquired no greater interest in said real estate than the life estate of the said Veeder, as against the plaintiff. Other persons appearing to have some interest in the land adverse to the plaintiff were made parties defendant; but their several interests need not be here further noticed.

The Omaha Savings Bank and Johnson answered, admitting the execution and delivery of the mortgage to them, denying that the plaintiff has any interest, right or title to the property in suit, or any part thereof, and denying the other allegations of the petition. By way of cross-petition they asked a foreclosure of their mortgage lien, which it is alleged was created to secure the payment of $ 1,000, money borrowed by the said Aaron B. Veeder, default having occurred in the conditions of the mortgage.

Defendant Fillion answered, admitting some of the formal parts of the petition and that after the death of Emma V. Veeder, Aaron B. Veeder was appointed administrator and administered upon said estate, and that the real estate in controversy was sold under order of court, and, in general, averring the regularity of the proceedings whereby the real estate was sold by the administrator to pay the debt allowed against the estate; pleaded her mortgage for $ 3,000, alleged to have been given for borrowed money, loaned to the mortgagor, Veeder, and praying a foreclosure thereof. It is also pleaded by this defendant that the said real estate was in truth and in fact the property of the said Aaron B. Veeder, who by the proceedings of administration merely acquired title to his own property, and that the deceased held the legal title which she had obtained without consideration, and which she held as trustee for the use and benefit of her husband, Aaron B. Veeder, under an agreement to reconvey to him, which had not been effectuated prior to her death; that the land had been conveyed to her for the purpose of withdrawing the same from the creditors of her husband, who, it is alleged, was at the time financially embarrassed and unable to meet his obligations to his creditors; that one eighty acres of said tract of land was a government homestead, acquired by the said Aaron B. Veeder from the United States government, and the other was purchased and paid for by him and the title taken in the name of his wife; that she had no property or means, and that the conveyances were as to her wholly without consideration; that the husband had the possession and control of said real estate, made the improvements and paid the taxes accruing thereon. It is also alleged that after the death of the wife, the said Aaron B. Veeder, in order to more quickly facilitate the settlement of the estate, and to gain title to himself, as he was legally entitled thereto, had the proceedings of administration as set out in plaintiff's petition, but asserting that all of such proceedings were had in pursuance of law and equity and that nothing was done to defraud the plaintiff or any other person.

The other answer amounted substantially to a general denial, with a plea that the defendant was entitled to protection as a good-faith purchaser without notice and for value.

On the issues presented, the trial court found that at the time of the death of Emma Veeder she left the plaintiff and an infant child, who soon thereafter died, as her heirs at law, and that the title to the real estate in controversy was in her name; that the administrator's sale to Hurford was without consideration and for the purpose of placing the legal title of said property in the name of Aaron B. Veeder; that one eighty acres of land was taken as a homestead by the said Aaron B. Veeder and by him conveyed to his wife through the name of John Westley, without consideration; that the other eighty acres was purchased and paid for by said Aaron B. Veeder from John W. Irwin and conveyed to Emma Veeder without consideration from her; that said tracts adjoin each other and were occupied as a homestead by the said Aaron B. Veeder and Emma V. Veeder, at the time said conveyances were made to Emma V. Veeder and at the time of her death; that at the time said conveyances were made, the said Aaron B. Veeder was indebted to sundry persons, and such conveyances were made to hinder the creditors of Aaron B. Veeder in the collection of their debts; that the plaintiff resided with his father until attaining his majority, was schooled and clothed by him, and had no other benefit or consideration for any of the conveyances of said real estate. The court found in favor of the mortgagees and judgment creditor who purchased at execution sale; that the conveyances through which they claimed were made without any notice or knowledge of the manner or character of the conveyances between the said Thomas J. Hurford and the said Aaron B. Veeder, and were made in good faith, and that the liens and interests in the said premises acquired thereby were prior and...