Butts v. Hunter

49 N.W. 940, 33 Neb. 119, 1891 Neb. LEXIS 140

• Court: Nebraska Supreme Court
• Decided: September 29, 1891
• Status: Published

Opinion

Maxwell, J.

This is an action in the nature of a creditor’s bill to subject the undivided one-third interest in lot 8, block 19, in ‘Wasmer’s addition to Grand Island, and the undivided one-third of lot 1, block 21, in the original town of Grand Island, to the payment of the plaintiff’s judgment.

George W. Hunter and wife made no defense.

David C. Zink and Julius A. Hunter answered: “Said defendants David C. Zink and Julius A. Hunter further answering, allege that these defendants were, on or about the month of June, A. D. 1888, and for a long time prior thereto, with said George W. Hunter, each the owners in severalty of portions of the real estate mentioned and described in the plaintiff’s petition, that is to say, each of said defendants, David C. Zink, Julius A. Hunter, and George W. Hunter, were the owners of an undivided one-third part of each of the lots and tracts of land in said plaintiff’s petition mentioned and described; that on or about the month of June, A. D. 1888, they purchased of said George W. Hunter his undivided one-third part in each of said lots and tracts of land, and paid said George W. Hunter therefor the fair price and full market value thereof, tó-wit: “The J of lot 8, block 19, Wasmer’s addition.....$133 00 “The J of lot 1, block 21, original town........... 300 00

“ Deny that said premises were purchased without consideration ; deny that said purchase was made for the purpose of hindering and defrauding the plaintiff, or any other creditor of said George W. Hunter, or any other persons, but allege that the interest of said George W. Hunter was purchased by these defendants for value in good faith and without notice, knowledge or belief that said George W. Hunter intended thereby to defraud the plaintiffs or any other of his creditors, wherefore these defendants pray the judgment of this court that they go hence without date and recover their costs about this suit in their behalf expended.”

In the reply the plaintiff denies that the defendants paid any consideration for the lots.

On the trial of the cause the court found the issues in favor of the defendant and dismissed the action.

Julius A. Hunter was called as a witness by the plaintiff and testifies that George W. Hunter, D. C. Zink, and himself were partners in the grocery business prior to June 20, 1888; that about the 16th day of June of that year George W. and wife made a deed to Zink and himself for their interest in said lots, and that he bad no knowledge for some time thereafter of the existence of said deed. His testimony is frank and bears upon its face the stamp of truth. Mr. Zink testifies that he managed the business of Julius; that he did not tell him at the time of the purchase that he had received a deed of conveyance from George and wife.

He also states the consideration was paid by checks on The First National, and Bank of Commerce of Grand Island. It is proved beyond controversy that no such -cheeks were presented to either or both of said banks or paid. An attempt was afterwards made to change the proof in that regard by introducing the ledger of the firm of Zink & Hunter to show a payment on June 16, 1888, to George of the sum of $1,006.98.

The book of original entries is not before us and the ledger is not evidence under the statute. Besides, Mr. Zink is clearly shown to have been mistaken in his statements as to payments through the bank, and we are convinced that he is mistaken in regard to the ledger. There is failure of proof to sustain the consideration for the deeds in question.

It follows that the judgment must be reversed and the ■cause remanded to the district court, with directions to subject the property in question to the payment of the judgment.

Judgment accordingly.

The other judges concur.