Mosher v. Neff , 33 Neb. 770 ( 1892 )

Maxwell, Ch. J.

This was an action in equity in the, district court of York county to set aside deeds of forty acres of land from the defendant Leonard Neff to one Hally, and from Hally to the defendant Lydia Neff, who is the wife of Leonard Neff. Judgment in the district court was rendered in favor of the defendants, from which the plaintiff appeals to this court. After the defendants had answered, the plaintiff filed an amended petition and also an amended reply. The original bill of exceptions is attached to the record, which contains all of the evidence offered on the trial of the cause.

The evidence shows that about nine years before the trial of this cause the defendants Leonard Neff and Lydia Neff, who were husband and wife, and who were then and have ever since been living together as such, came to Seward county from Illinois and soon after purchased a homestead of 160 acres of land in Seward county, upon which they have resided since 1881 or 1882. According to the defendant’s evidence this homestead was bought by both parties, some payments being made by one and some by the other. In 1879 one Dewey had a contract from the railroad company for the purchase of eighty acres of land in York county, which included the forty acres in question, and the defendant Leonard Neff bought the contract of Dewey and took an assignment directly to himself. (He says that he had some of his wife’s money to invest and wanted Dewey to make the assignment to her instead of himself, but this was not done.) On the 5th day of June, 1883, the railroad company deeded the lan.d to the defendant Leonard Neff, and the deed was recorded August 4, 1884.

On the 20th day of December, 1883, one Henry W. Brooks, who is a son-in-law of these defendants, was indebted to one ¥m. A. Sharrar upon two promissory notes which were past due, and to obtain an extension of time of payment procured the defendant Leonard Neff, to sign said notes with him, and time of payment was extended to the 1st day of February, 1884. On March 4, 1884, action was brought in the county court of Seward county on said notes against Brooks and the defendant Leonard Neff, The summons was served on both defendants March 26. 1884, the case was continued from time to time, and the issues made up and finally tried August 12, 1884, and judgment for plaintiff for $280; a transcript of this judgmens was duly docketed in the district court of York county on the 14th day of August, 1884.

Execution was issued to the sheriff of York county and levied upon the forty acres in question and the same was sold by the sheriff on February 18, 1885; the sale was duly examined and confirmed by the court and deed ordered; the deed was executed by the sheriff to William A. Sharrar and this plaintiff claims through him. While the action was pending in the county court of Seward county, the defendant Leonard Neff deeded the land in question, together with the homestead in Seward county, to one Dally who on the same day deeded the same to the defendant Lydia Neff. The defendant Lydia Neff answers that the land in question was bought with her money and is her land; the plaintiff in his amended reply alleges that the money which bought the land was Mr. Neff’sand that Lydia Neff is now estopped to claim the land as against creditors whose claims originated while the land purported to be the property of Leonard Neff, or who trusted Mr. Neff on the faith and credit of this land.

The record clearly shows that the debt upon which the judgment was recovered was not contracted by Mr. Neff, nor in reliance upon his being the owner of the property in dispute. The debt was that of a son-in-law, Brooks by name, and although the extension of the time of payment would be a sufficient consideration to hold the surety liable, yet there is no claim that the plaintiff lost any opportunity or advantage in the collection of his claim from Brooks by extending the time of payment. So far as we can judge the debt could not at any time have been collected from Brooks.

On the trial of the cause the court below found the issues in favor of Mrs. Neff and rendered a decree accordingly. The testimony clearly shows that the money that paid for the land in controversy belonged to Mrs. Neff and that she was in fact the owner of the land in dispute. It is unnecessary to review the testimony at length. The judgment is right and is

Affirmed.

Post, J., concurs. Noryal, J., took no part in the decision.