Trester v. Pike ( 1895 )

Ryan, C.

Appellant, having obtained judgments against William A. Pike in the county court of Lancaster county, commenced this action in the district court of said county to subject to the payment of said judgments certain real property in Germantown, Seward county, and also a certain lot in the city of Lincoln, of which property the ownership was in the wife of W. A. Pike.

One question urged is as to the competency of oral evidence to show that the judgment defendant owned property subject to execution in the face of a return by the sheriff nulla bona. The testimony on this point was elicited by appellant’s cross-examination, so that he has no proper standing to question its admissibility. Without passing upon the right of the appellant to subject in the Lancaster county district court real property situated in Seward county, it is needful only .to say that the finding of the said district court that the property in Germantown was wholly acquired by means legally and equitably belonging to the wife was amply sustained by the evidence, and that,, therefore, in any event it could not be subjected to the payment of the debts of her husband. There was a finding that the Lincoln lot had been acquired by $200 of the means of Hannah M. Pike, in whose name the title was taken and that the remainder of its value was paid with the means of her husband, W. A. Pike. There was also a finding that the evidence failed to show that the property described in the petition was conveyed to Hannah M. Pike with intent to defraud the creditors of the defendant Will-, iam A. Pike. A careful reading of all the evidence convinces us that this finding was correct. It was also found by the court that W. A. Pike, at the time of the trial, had property in Lancaster county in his own name. This finding was predicated upon the following question and answer which are found in the cross-examination of defendant W. A. Pike: “Q. You never had any property of your own in Lincoln or in Nebraska? A. Yes, sir; I have. I have got it now. I will tell you where it is if you want to know.” The question was as to the existence of property in Nebraska and also as to property in Lincoln. Probably the court construed this as an inquiry as to the existence of property in Lincoln, and on that understanding of it made' the finding which was made as to the existence of property in that city. So much might be implied by a single inflection or by the emphasis of a word that we cannot say that the finding in question was not sustained by the evidence, — meager though it was. It must, therefore, be accepted as sufficiently established by proof, first, that there was no evidence of an intent to defraud the creditors of W. A. Pike by the conveyance to his wife of the Lincoln property, and, second, that "W". A. Pike was the owner of property in Lancaster county in his own name at the time it was attempted to subject to the payment of his debts the property held by his wife. The district court, upon the facts specially found, properly adjudged that there was no equity in the petition of plaintiff and thereupon dismissed his action. Its judgment is, therefore,

Affirmed.