#### O. H. Barnes, appellant, v. William R. Cox et al., appellees.

Filed June 8, 1899.

No. 8893

t. Leeds: Rights *of*Third Persons. An instrument transferring property, even though recorded, cannot be given effect to the prejudice of third parties who acquired rights in the property before the actual delivery of the conveyance.

2. Lien of Attachment. An order of attachment becomes a lien on the property attached only to the extent of the defendant’s actual interest therein.

3. ^Fraudulent Conveyance. Evidence examined, and *held*to sustain the finding of the trial court.

Appeal from the district court of Pierce county. Heard below before Robinson, J.

*Affirmed.*

*Powers & Ilays,*W. *W. Quiccy,*and *Benjamin Lindsay,*for appellant.

*Robertson & 'Wigton, contra.*

Sullivan, J.

On March 17, 1890, O. H. Barnes sued William R. Cox in the district court of Pierce county upon a judgment for the sum of $1,650 recovered in the previous January in one of the courts of the state of Texas. The action was aided by attachment, the writ being levied upon the northwest quarter of section 31, and an undivided half of the. southeast quarter of section 29, in township 28 north, range 4 west of the 6th P. M'., in Pierce county. In March, 1892, Barnes obtained judgment in the action and an order for tire sale of the attached property. Under this order the land in section 29 was sold to the plaintiff. There were no bidders for the land iu section 31. After-wards Barnes instituted this suit against the appellees, alleging in his petition that there was of record in the office of the county clerk of Pierce county a deed convey*676ing said land from William R. Cox to John L. Cox; that, although such deed was fraudulent and void as to creditors, it constituted a cloud upon the owner’s title, deterred bidders, obstructed the sale, and hindered plaintiff in obtaining satisfaction of his judgment. John L. Cox answered-, asserting ownership of the land, but denying that the conveyance by which he acquired title was made to hinder, delay, or defraud his grantor’s creditors. He asked that his title to the entire tract upon which the attachment had been levied be quieted and confirmed in him. The trial resulted in a decree dismissing the petition and awarding the affirmative relief for which the answer prayed. The plaintiff brings the record here for review by appeal.

The evidence in the bill of exceptions would warrant the court in finding the following facts: In 1888 William R. Cox, who resides in the state of New York, visited Pierce county with his son, the defendant John L. Cox, and while there bought the land in section 29, taking the title to himself. The purchase price was $2,000. At the same time the son secured a timber claim, for which the father paid $1,000. The following year the elder Cox purchased the land in section 31, paying therefor the sum of $1,500. It was understood that the several tracts were purchased for the benefit of John L. Cox and that the title would be transferred to him as soon as he should repay to his father the money expended, together with interest thereon at the rate of six per cent. The son took immediate possession of the property, lived on it, improved part of it, paid the taxes, and received to his own use all of the profits. Between November 12, 1886, and May 4, 1888, Ida E. Cox, wife of John L. Cox, received from the executor of her father’s estate $3,408.52, which sum was paid over to William R. Cox and by him credited on the indebtedness of his son. Mrs. Cox afterwards received from the same source something over $600, a considerable portion of which was paid to her father-in-law on account of the land transaction. In 1887 there was a *677settlement between the father and son at the residence of the latter in Pierce county, and it was then and there agreed between them that the land had been fully paid for and that the son was entitled to receive a deed. The wife of William N. Oox being then in New York, a conveyance could not be immediately executed. Mr. Oox, however, took with him when he returned home a Nebraska form of deed in which he wrote with pencil a description of the land in controversy. On March 20, 1888, the deed was written out, signed, and acknowledged before a notary public in the state of New York, but was not actually delivered until March 17, 1890. The attachment was levied a few hours before the deed was delivered, but the instrum ent had been previously sent by the grantor to the comity clerk to be recorded, and had been received by the clerk for that purpose on March 12, 1890. It is contended by the defendants that the deed took effect by relation from the time it was received by the clerk for registration, and that, therefore, the legal title was vested in John L. Cox prior to the levy of the attachment. Such is not the law. The case of *Rogers v. Heads Iron Foundry,*51 Neb. 39, is decisive of the question, for it was there held, after an elaborate revieiv of the authorities, that the doctrine of relation cannot be given effect to the prejudice of third parties who acquired rights in the property before the actual delivery of the conveyance. But while it is true that the legal title was in the attachment defendant at the time the writ was levied upon the land in dispute, it does not follow by any means that the judgment should be reversed. The conclusion of the trial court is, we think, warranted by the evidence. There are certainly some facts of considerable weight, and a number of minor circumstances, from which it might be fairly inferred that both of the tracts in question were not embraced in the arrangements made between the father and son in 1883 and 1881, or if they were so embraced, that there remained an unpaid balance of the purchase price upon which the attachment became *678a valid lien. But after a careful study of tlie entire evidence, keeping in view the interest of defendants’ witnesses and the probable motive for making a fraudulent conveyance, we are disposed to think that the finding of the trial court is supported by a preponderance of the evidence. The judgment is

Affjliimkd.