Ward v. Parlin
| Decision Date | 18 September 1890 |
| Parties | CLARK WARD ET AL. v. PARLIN ET AL |
| Court | Nebraska Supreme Court |
ERROR to the district court for Red Willow county. Tried below before COCHRAN, J.
Reversed and remanded.
S. R Smith, for plaintiffs in error, cited: First Nat'l Bank of Omaha v. Bartlett, 8 Neb. 319; Van Deuzer v Peacock, 11 Id., 245; Dice v. Irwin, 11 N.E. [Ind.], 488; Chapman v. Summerfield, 14 P. [Kan.] 235; Gerald v. Gerald, 6 S.E. [S. Car.], 290; Hoes v. Boyer, 9 N.E. [Ind.], 427; Kennedy v. Powell, 34 Kan. 22; Rudershausen v. Atwood, 19 Ill.App. 58; Payne v. Wilson, 41 N.W. [Ia.], 45; Popendick v. Frobenius, 33 N.W. [Mich.], 887; Dull v. Merill, 36 Id., 677; Rockford Boot & Shoe Co. v. Mastin, 39 N.W. [Ia.], 219; Buhl v. Peck, 37 N.W. [Mich.], 876; Miller v. Krueger, 13 P. [Kan.], 641; Bailey v. Kan. Mfg. Co., 32 Kan. 73; Clemens v. Brillhart, 17 Neb. 336; Hedge v. Glenny, 39 N.W. [Ia.], 818; Citizens Nat'l Bank v. Webster, 41 Id., 47; Wooden v. Wooden, 40 N.W. [Mich.], 460; Moorman v. Gibbs, 39 N.W. [Ia.], 832; Cornel v. Gibson, 16 N.E. [Ind.], 130; Tomlinson v. Mathews, 98 Ill. 178.
Rittenhouse & Starr, contra, cited: Willard v. Foster, 24 Neb. 213; Richardson v. Doty, 25 Id., 424; Hedges v. Rooch, 16 Id., 674; Brown v. Rodgers, 20 Id., 547 Grimes v. Sherman, 25 Id., 843.
This action was brought in the court below to set aside, as fraudulent, deeds of transfer from Clark Ward to Sarah J. Ward, his wife, of lots Nos. 23 and 24, in block 38, of the town of Indianola, and lots Nos. 2 and 3 of block 8 of Springdale addition to the town of Bartley.
The plaintiffs alleged that on September 5, 1888, they had judgment in the county court of Red Willow county, against Clark Ward, for the sum of $ 986.60, and $ 6.35 costs of suit; that a transcript of said judgment was filed with the clerk of the district court of said county, upon which execution was issued September 5, 1888, to the sheriff of said county, and duly served and returned "Nulla bona," but which was levied upon the real estate above described, which, on the 13th day of August, 1888, prior to plaintiffs' judgment, had been conveyed by the judgment debtor to his wife without consideration, and for the purpose of hindering and defrauding the plaintiffs and other creditors of Clark Ward; that the deed therefor was filed for record on September 6, following, and subsequent to the date of the filing of the transcript of plaintiffs' judgment and issuing the writ of execution; that at the same time the defendant Clark Ward filed instruments of conveyance to all his personal property, dated back at various times prior to the rendition of the judgment, which property, if free from incumbrance, is worth about $ 1,500, but by reason of said fraudulent conveyance from Clark Ward to his wife rendering the title acquired by the purchaser at a sale under the execution uncertain, and prevents it being sold at a fair price.
The prayer is for the cancellation of the conveyance from Clark Ward to his wife, that the lots be sold and the proceeds applied to the satisfaction of plaintiffs' judgment.
The defendants answered, admitting the judgment, the filing of the transcript in the office of the clerk of the district court, and the making of the conveyances to the real estate. The defendants for further answer deny that the conveyances described in the petition were given without consideration, but were given for a good, valid, and subsisting consideration, were made in good faith and without any intention of hindering, delaying, or defrauding the plaintiffs or any other creditors; deny that Clark Ward is insolvent, and that the conveyances of personal property named in the petition were dated back, but aver that they were made at the time they bear date. The answer further states that part of the property mentioned in the petition was purchased with the sole and separate money of the defendant Sarah J. Ward; that the conveyance was made to Clark Ward through a mistake, and that all the property transferred from said Clark Ward to his wife, was in payment for money previously loaned by Sarah J. Ward to Clark Ward, and prior to the contracting of the debt on which plaintiffs' judgment was rendered.
The reply was a general denial.
A trial was had to the court, with a decree for the plaintiffs, setting aside the conveyance, and subjecting the real estate, set forth in the petition, to the payment of plaintiffs' judgment.
The defendants' motion for a new trial was overruled and the case was brought to this court for review on eight assignments of error. The first, second, third, and fifth errors are based upon the rulings of the court in admitting evidence claimed to be incompetent and immaterial.
The rule is established in this state, that when a cause is tried to a court without a jury, the admission of incompetent evidence on the trial will not be sufficient grounds for reversing the case. (Willard v. Foster, 24 Neb. 205, 38 N.W. 786; Richardson v. Doty, 25 Neb. 420.) We have, however, examined each of the rulings complained of, and find the evidence material and competent.
The fourth assignment of error is that the court erred in allowing the plaintiffs to amend their petition. Upon the trial the plaintiffs offered in evidence the deed from Clark Ward to Sarah J. Ward, for lots 23 and 24, in block 38, in the town of Indianola. The defendants objected to its introduction, as not covering the property in controversy. The lots were described in the petition as being in block 28, and the court permitted the petition to be amended, by interlineation, by changing from block 28 to block 38. The amendment was in furtherance of justice, and there was no abuse of discretion in permitting the pleading to be changed. (Hedges v. Roach, 16 Neb. 673, 21 N.W. 404; Brown v. Rogers, 20 Neb. 547.)
The remaining errors assigned are that the judgement is not sustained by sufficient evidence, the judgement is contrary to law, and error in overruling the plaintiffs' motion for a new trial.
The defendant Clark Ward was a dealer in agricultural implements at Indianola, and on the 29th day of October, 1887, gave to the plaintiffs his promissory note for $ 951.30, on which judgment was rendered in the county court of Red Willow county, on September 5, 1888, for $ 986.60. A transcript of the judgment was filed on the following day in the district court of that county, an execution was issued thereon and placed in the hands of the sheriff, who indorsed the same "no goods," and levied the writ upon lots 23 and 24, in block 38, in the town of Indianola, and on the south half of lot 2 and the north half of lot 3, in block 8, Spring Dale addition to the town of Bartley. On the 13th day of August, 1888, Clark Ward conveyed by warranty deed the Indianola lots to Sarah J. Ward, the consideration expressed therein being $ 800, and on the same day Ward made a quitclaim deed to the lots in the town of Bartley to his wife. Those deeds were filed for record September 6th, 1888. The following instruments were put in evidence by the plaintiffs: A bill of sale from Clark Ward to Sarah J. Ward, dated January 7, 1888, for thirty-four horses and twenty yearlings and colts; a chattel mortgage from Clark Ward to his wife, dated May 9, 1888, on certain farm machinery, to secure $ 340; a chattel mortgage from Clark Ward to the First National bank of Indianola, dated September 5, 1888, on his entire stock of agricultural implements, to secure the sum of $ 2,829.20; a chattel mortgage from Clark Ward to M. D. Welch, dated September 6, 1888, on three hundred head of cattle and his stock of agricultural implements, to secure a note of $ 1,255, and also a bill of sale from Clark Ward to his wife, dated October 20, 1888, on a jack, subject to two other mortgages. All of these instruments were filed September 6, 1888, except the last bill of sale, which was filed October 20, 1888.
Leander Starbuck testified that while the execution was in his hands for service, he asked Clark Ward if he had any property to turn out on the note; he replied that there was personal property on his place, but it was in such shape that the officer could not get it, and that he had no real estate that could be levied on.
W. S Starr testified, in substance, that he had for collection the claim, on which the judgment was afterwards rendered, and about August 20, 1888, before bringing suit for the plaintiffs in the county court, he had a conversation with Mr. Ward in which Ward proposed to secure the claim by a mortgage on the lots in Bartley and Indianola, stating that they belonged to him individually, were free from incumbrance, and he had no other property which he could turn out to secure the claim. Starr replied that he would not take mortgages without consulting with the plaintiffs, and that he wrote them and they replied not to accept the proposed security. Mr. Starr further testified that Mr. Ward told him that the claim was secured by collateral notes amounting to $ 1,300, and that if the...
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