Wright v. Davis

• Decision Date: 08 January 1890
• Citation: 44 N.W. 490,28 Neb. 479
• Parties: WRIGHT v. DAVIS ET AL.
• Court: Nebraska Supreme Court

28 Neb. 479

44 N.W. 490

WRIGHT

v.DAVIS ET AL.

Supreme Court of Nebraska.

Jan. 8, 1890.

Syllabus by the Court.

1. “An action for relief on the ground of fraud may be commenced at any time within four years after a discovery of the facts constituting the fraud, or of facts sufficient to put a person of ordinary intelligence and prudence on an inquiry which, if pursued, would lead to such discovery.” Parker v. Kuhn, 21 Neb. 413, 32 N. W. Rep. 74.

2. Where, soon after a conveyance of real estate to the wife of a debtor, he became, and was known to be insolvent, and a creditor knew of the facts of such conveyance and insolvency, and knew of occupation and improvement of the real estate by the debtor, having knowledge of such facts as would suggest the fraudulent character of the conveyance, and which, if pursued, would lead to a knowledge of the fraud, it was held that the statute of limitations began to run, under the provisions of section 12 of the Civil Code, and that the creditor's right to subject the property to the payment of his debt on account of the fraud would be barred in four years.

Appeal from district court, Douglas county; WAKELEY, Judge.L. R. Wright and Brien & Duffie, for appellant.

Charles B. Keller, for appellees.

REESE, C. J.

This action was instituted in the district court of Douglas county, and was in the nature of a creditor's bill. It was alleged in the petition that in the year 1868 James W. Davis became indebted to the plaintiff, and that upon such indebtedness plaintiff recovered a judgment against the said Davis for the sum of $3,069.70; said judgment having been rendered by the district court of Douglas county. That the judgment became dormant, and that the same was revived by order of said court at the October term thereof, 1885, and it thereby became a lien upon all the real estate of the said defendant situated in Douglas county. That on the 19th day of June, 1886, plaintiff caused an execution to be issued upon said judgment, and placed in the hands of the sheriff, and that on the 23d day of August of the same year the sheriff returned said execution unsatisfied, for want of property upon which to levy and make the same. That the said Davis, about the date of the incurring of the indebtedness, and before, and at the time of the recovery of said judgment, was indebted to numerous persons, and contemplated utter insolvency, and, with a view to defraud, hinder, and delay his creditors, at the time and date mentioned in the petition, purchased certain real estate, which is described therein, with his own means and money, and, for the purpose of hindering, delaying, and defrauding his creditors, caused the title to said property to be taken in the name of defendant Elizabeth Davis, his wife. That at the time of the execution of the conveyances to her she well knew of the insolvent condition and fraudulent intentions of the said James W. Davis, her husband, and combined and confederated with him to hinder, delay, and defraud his creditors. And that all of the property described in the petition was in truth and in fact the property of the said James W. Davis, and subject to the payment of his debts. That subsequent to the execution of the deed of conveyance to her, and in the years 1879 and 1880, she conveyed the real estate to certain persons named in the petition, who after that time reconveyed the same to her; but that the persons to whom she conveyed the property never owned the same, and had no title therein, the conveyances being made for the purposes of covering up and hiding the title, and thus assist in defrauding the creditors of the said James W. Davis. That during all of said time the said James W. Davis was the sole owner of the real estate, and that he erected buildings and made improvements thereon of great value, and paid for the same out of his own means.

The other defendants were referred to in the petition as claiming to have some interest in fractional portions of the real estate described; but it was alleged that whatever interest they had was obtained subsequent to the rendition of the judgment, and with full notice of the...