South Omaha National Bank v. Boyd

McCulloch, J. John S. Tewksberry was the owner of a tract of 320 acres of land in Lonoke County — -the east half of section 32, in township 2 north, range 8 west — and one George Burke obtained a judgment against him in-the sum of $3,620 in Douglas County, Nebraska. Said judgment was assigned to appellant, a national banking corporation, and this suit was brought by appellant against Tewksberry and Mrs. Anna M. Maxwell, to whom he had conveyed a portion of the land, to cancel said conveyances and subject the land to the satisfaction of said judgment. It is alleged in the complaint that Tewksberry conveyed the northeast quarter of said section to one Ida Smith in February, 1896, and on March 2, 1898, caused said Ida Smith to convey the same to defendant, Mrs. Maxwell, who was his wife’s niece, and that both of said conveyances were made without consideration, and for the fraudulent purpose of cheating and hindering his creditors, and especially appellant in the collection of said debt. The Nebraska judgment was rendered on July 31, 1899, upon a cause of action alleged to have arisen during the year 1887. Subsequently appellee Frank Sperry was made defendant by amendment to the complaint, alleging that he purchased the southeast quarter of said section from Tewksberry since the institution of the suit, but with full notice of the pendency of the suit. Sperry answered, alleging that said tract was occupied by Tewksberry as his homestead at the time of the conveyance, and that he purchased without actual knowledge of the pendency of the suit. Subsequently appellee John J.. Prosser filed his intervention, claiming that Mrs. Maxwell had sold and conveyed the northeast quarter of said section to him for a valuable consideration before the commencement of the suit, and that he had no notice of the alleged fraudulent design of Tewksberry and Mrs. Maxwell to defeat the collection of the debts of the former. Tewksberry died during the pendency of the cause below, and as to him the cause was revived in name of J. C. Boyd, special administrator. The cause was heard upon the pleadings and depositions of witnesses, and the chancellor dismissed the complaint for want of equity. The proof is clear that the southeast quarter of said section was the homestead of Tewksberry, and that he was a married man, and resided upon the same as his homestead at the time he sold and conveyed to Sperry. Therefore the conveyance of that tract was not fraudulent and void as to creditors. Bogan v. Cleveland, 52 Ark. 101; Pipkin v. Williams, 57 Ark. 242; Gibson v. Barrett, 75 Ark. 205. The tract conveyed to Prosser by Mrs. Maxwell (northeast quarter of the section) stands in a different attitude in the case. It was not a part of the homestead. Mrs. Maxwell undertakes to prove a consideration for the conveyance to her of this tract, and to exonerate herself from the imputation of knowledge of or participation in the fraudulent scheme of Tewksberry to defraud his creditors, but she fails to do this satisfactorily. She was closely related to Tewksberry, and received this conveyance from him without payment of any money. She brings in an account against him aggregating $1,100 for services as nurse while he was sick, expenses of carrying him back to Nebraska from Lonoke, for board and attention while in Nebraska at $75 per month, and board for another period of six months at $25 per month, and for board of his wife for two years. No money seems to have passed between the parties during those important transactions covering a period of two years, and nearly all of this alleged debt was incurred after the conveyance of the land to Mrs. Maxwell. The whole transaction is so unusual that, without corroboration, it is too unsatisfactory to be accepted as establishing its fairness and the good faith of the grantee in a conveyance from one near relative to another which deprives creditors of the opportunity to enforce payment of their just demands against the grantor. If the title remained in Mrs. Maxwell, we would have no hesitancy, upon this proof, in setting aside the conveyance to her. But the grantee, Prosser, the present owner of that tract, appears to be an innocent purchaser. Pie bought the land from Mrs. Maxwell through her agent, Fletcher, before the commencement of this suit, and paid the purchase price. This suit was instituted on July 23, 1902, and the deed of conveyance from Mrs. Maxwell to Prosser is dated and was acknowledged on June 17, 1902, but was not filed for record until August 27, 1902. Mrs. Maxwell resided in Omaha, Nebraska, and left the land in charge of her agent, W. P. Fletcher, a real estate agent and abstracter of titles, at Lonoke, Arkansas. Prosser was a resident of the State of Missouri, and came to Lonoke County for the purpose of buying a tract of land. Fletcher sold him this tract, and sent the deed to Nebraska to Mrs.' Maxwell for execution. She returned the deed to Fletcher, who delivered it to Prosser and received payment of the purchase price. We think the testimony is sufficient to justify the conclusion that the sale and conveyance to Prosser was consummated and the purchase price paid before the commencement of this suit, and that he purchased without any knowledge of or participation in Tewksberry’s scheme to defraud his creditors. This being true, the chancellor was right in dismissing the complaint as to this tract of land. The plaintiff was, however, entitled to a decree against the estate of Tewksberry for recovery of the amount of balance shown to be due on the Nebraska judgment, with interest and cost of suit, and the chancellor erred, to that extent, in dismissing the complaint. The cause is therefore remanded with directions to enter such a decree. The decree is affirmed as to Sperry and Prosser and the tracts of land claimed respectively by them.