Woodruff v. White

• Decision Date: 13 February 1889
• Citation: 41 N.W. 781,25 Neb. 745
• Parties: WOODRUFF v. WHITE.
• Court: Nebraska Supreme Court

25 Neb. 745

41 N.W. 781

WOODRUFF

v.WHITE.

Supreme Court of Nebraska.

Feb. 13, 1889.

Syllabus by the Court.

1. Instructions asked by plaintiff in error, held, rightly refused by the trial court.

2. A statement made by J. A. W., the husband of the defendant in error, to the effect that he desired to hasten certain corn to market to prevent the same being taken in execution to pay the rent of the land on which the corn was raised, the corn involved in the suit at bar not having then been produced, and there being no evidence of agency on the part of J. A. W., held inadmissible in evidence to sustain a levy on the last-named corn made upon an execution issued on a judgment against J. A. W., rendered for the rent of the land on which the first-named corn was raised.

3. The instruction numbered 2, asked by plaintiff and given by the trial court, examined and approved.

4. There being no sufficient evidence to sustain the verdict for damages, held, that the judgment would be reversed unless all of such damages, except a nominal sum, be remitted within the time specified.

Error to district court, Johnson county; CHAPMAN, Judge.

C. K. Chamberlain and A. M. Appelget, for plaintiff in error.

S. P. Davidson, for defendant in error.

COBB, J.

This was an action of replevin, commenced before a justice of the peace of Johnson county, by Mrs. Clara A. White against C. C. Woodruff. It appears from the record that T. Appelget & Son had a judgment in the county court of said county against J. A. White, the husband of Mrs. White, the defendant in error here. They issued an execution on the said judgment, and placed it in the hands of C. C. Woodruff, the plaintiff in error here, who was the sheriff of said county, who by virtue thereof seized, levied on, and took into his possession, as the property of said J. A. White, a quantity of corn in the ear, situated upon the farm of Henry Rogge, in said county. The taking of this corn by the sheriff, on said execution, and which corn was claimed by Mrs. Clara A. White, constitutes the subject-matter of the litigation. The cause was appealed to the district court, where there was a trial to a jury, which found for the plaintiff, and assessed her damages at the sum of $40. In this court the errors assigned and argued in the brief of counsel are four in number. They will all be considered, but not in the order in which they are presented. The following instructions were asked by the defendant and refused:

“(2.) Transactions between husband and wife, in relation to the transfer or sale of property from one to the other, by reason of which creditors are prevented from collecting their just dues, should be scrutinized very closely, and the good faith of such transactions should be established beyond question.

(3) Where property is transferred by a husband to his wife after a debt is contracted by the husband, as against that debt she must show by a preponderance of proof that she paid a valuable consideration, and that such transfer was not made for the purpose of defrauding existing creditors.

(4) The court instructs the jury that a married woman claiming property purchased after marriage, in opposition to her husband's creditors, must show that the consideration therefor was paid out of her separate estate.”

That these instructions state the law of the cases to which they are severally applicable, cannot be denied. The first of the said instructions, or No. 2, as they are numbered in the record, is, I think, a copy of the sixth instruction given in the case of Lipscomb v. Lyon, 19 Neb. 511, 27 N. W. Rep. 731, cited by counsel for the plaintiff in error, and its giving approved in the opinion of this court. But in that case the instruction was based upon the evidence that the replevied property, together with the house in which the same was kept, and the lot upon which said house was situated, were sold and transferred by the debtor husband to the plaintiff wife in payment of a loan or advance of money alleged to have been made by the wife to the husband in a foreign state, three years before the alleged transfer of the property.

The next instruction of the series refused is a substantial copy of the syllabus of the case of Thompson v. Loenig, 13 Neb. 386, 14 N. W. Rep. 168, also cited by counsel for the plaintiff in error. But in that case the debt for which the replevied property had been taken in execution was contracted by F. A. Loenig, the execution debtor, in 1873, at which time he was the owner of 160 acres of land, upon which he resided, and he also possessed a quantity of stock and farming implements. In 1875 judgment was rendered on said claim against Loenig. In 1879 execution was issued thereon, and a quantity of corn and 50 fat hogs levied on. This property was replevied by Mrs. Loenig, wife of F. A. Loenig. On the trial, the plaintiff's evidence of her title to the property consisted mainly in her possessing the title to the land upon which the said corn and hogs were raised, and as to this title it appeared that in December, 1874, after the contracting of said debt by F. A. Loenig, he, together with Mary S. Loenig, the plaintiff in said replevin suit, conveyed the said land to one James A. Pickett for the expressed consideration of $500. In the same month, Pickett and wife conveyed the land to Mary S. Loenig, the said plaintiff, for the expressed consideration of $600. She testified on the trial that she borrowed this $600 from friends in small sums, but failed to name any person from whom she borrowed any part of it; nor was there any evidence that Pickett paid a single dollar of the alleged consideration of $500. Substantially the same controlling facts were proved, or evidence offered to prove them, in the case of Koch v. Rhodes, 10 Neb. 445, 6 N. W. Rep. 767, cited also by counsel for plaintiff in error, and from the opinion in which, the fourth or last of the instructions, the refusal to give which is complained of, was substantially copied. But in the case at bar there is no evidence of trading or of transfers of property between the defendant in error and her husband that would render either of the said instructions applicable or admissible. The evidence introduced or offered by defendant in the court below was confined to very narrow limits, and did not include any fact tending to impeach the bona fides of the plaintiff's claim of title to the replevied property.

Frank Hutcheson, a witness for the defendant, testified that he was acquainted with the parties, and with John A. White, the husband of the plaintiff. In answer to the question: “State what conversation you had with him in the fore part of the month of February, 1885, in relation to his property and indebtedness,”--he made the answer that he was in the field, husking corn, that White had been up north-west some place, and when he came back he stopped and asked witness how the husking was, and said he wanted to get all the teams he could, and get his corn in as soon as he could, and get his money, and get it into his pocket. He said “these fellows might whistle for their rent.” Witness asked about the horses; how he would fix them. “He said he would fix them all right. That is all he said, and then drove to the house.” “ Question. Did he name any parties that might whistle for their money? Answer. He did not. He did not name any party that I remember of. He might have; I would not be positive as to that. Q. On what farm were you working? A. It belonged, I believe, to McKinster. At the time, I believe, it was in dispute. I don't know who did own it then.” In answer to further questions the witness stated that “this was in the first part of February, and that he had no other conversation with White in regard to the disposition of his property.” On cross-examination the witness testified that “no other person was present at the time of this conversation, except White and witness, the plaintiff then being at the house, a mile distant; that the conversation was in reference to the corn raised in the season of 1884, and had no reference to the corn raised in 1885, because it had not then been raised.” On motion of the plaintiff, the whole of the testimony of the witness was stricken out as incompetent and irrelevant.

The exclusion of this testimony constitutes the third ground of error assigned in the plaintiff in error's brief. At...