Weinland v. Cochran

9 Neb. 480

• Court: Nebraska Supreme Court
• Decided: January 15, 1880
• Status: Published

Opinion

Lake, J.

It was held by this court in the case of Wiel & Cahn v. Lankins, 3 Neb., 384, that before obtaining judgment on his demand, an. attachment creditor cannot maintain an action in the nature of a creditor’s bill to have an alleged fraudulent conveyance of real estate set aside. And it was there said that such a proceeding “ can only be maintained by a judgment creditor.”

The rule there laid down is applicable to this case, and decisive of it, for if an independent suit in equity could not be maintained for that purpose, it cannot in reason be claimed that the court can take cognizance of the same matter by uniting it with the original cause of action, as is done here.

Under our practice, subject to certain statutory restrictions, legal and equitable causes of action may be included in the same suit; but they must be existing, and not merely prospective causes of action. And, furthermore, we see no propriety in a practice which would put a grantee to the trouble and expense of a protracted litigation in defense of his title until after the indebtedness of his grantor has been judicially established.

While these considerations alone call for an affirmance of the judgment, it may not be amiss to remark that, were we to go further, and, looking to the evidence, base our decision upon that, the result would be the same. There were some facts disclosed on the trial from which the court might possibly have inferred that the defendant, Ford, was a fraudulent purchaser of the land in question, but the decided preponderance of the evidence is the other, way. Besides, where a question of fraud in fact is brought before us for review, and there is, as here, a real conflict of evidence, we are decidedly averse to interfering with the decision, whether made by court or jury. Indeed, we will not do so unless clearly satisfied that injustice has been done.

Judgment aeeirmed.