51 Ind. 85 | Ind. | 1875
The appellant’s complaint below avers, that on the 2d day of August, 1871, he purchased from John J. Baker, for the consideration of one thousand dollars — all of which, except one hundred dollars, was paid — the undivided fifth part of certain lands (describing them), situated in
The answers were: 1. General denial by Chandler and Taylor. 2. Special answer by all the defendants. To this paragraph a demurrer was filed for want of sufficient facts, and sustained, but no question upon this ruling is saved in the record. 3. General denial by Lee. 4. An amended second paragraph of answer in the following words: “ For second paragraph of answer, these defendants say that on the 24th day of February, 1871, the defendants Chandler and Taylor recovered judgment in the Hancock Circuit Court, in and for the county of Hancock, State of Indiana, for the sum of eight hundred and sixty dollars and fifty-seven cents, principal and interest and costs of suit, against John J. Baker and Adam T. Brown; that execution was duly issued on said judgment to the sheriff of Shelby county, Indiana, on the 28th day of October, 1872, and placed in the hands of said sheriff to be executed; and that the said sheriff, on the-day of-, levied upon the lands described in the complaint, to satisfy said judgment.”
To this amended second paragraph a demurrer was filed, alleging the insufficiency of the facts stated as cause. The
The cause was submitted to the court for trial upon these issues. The court found against the appellant, declared the conveyance fraudulent as against Chandler and Taylor, and denied the restraining order. Exceptions and appeal.
Amongst other errors, it is assigned,
1. That the court erred in overruling appellant’s demurrer to amended second paragraph of answer.
We can find no ground upon which the sufficiency of this paragraph can- be upheld. The judgment set out was a lien only on lands in Hancock county. 2 G. & H. 264, sec. 527. Rourke v. Rourke, 8 Ind. 427; Fletcher v. Holmes, 25 Ind. 458. There is no allegation that a transcript of the judgment had been filed in the county of Shelby. 2 G. & H. 265, sec. 528. Rourke v. Rourke, supra; Julian v. Beal, 26 Ind. 220.
The facts alleged do not constitute a fraud in law, and no fraud in fact is averred. Fraud must be alleged; it is never presumed. It is unnecessary to cite authorities in support of this fixed principle. There is no case made to reach the unpaid purchase-money. We think the court erred in overruling the demurrer to the amended second paragraph of answer.
The judgment is reversed, and the cause remanded, with instructions to sustain the demurrer to the amended second paragraph of answer, grant leave i to the parties to amend, and for further proceedings in accordance with this opinion.