83 Ind. 67 | Ind. | 1882
The appellee sued the appellants in the Howard Circuit Court, alleging in the complaint, that on the 29th of November, 1878, the appellee, by the consideration of the Hamilton Circuit Court, held within and for the county of Hamilton, in this State, recovered a judgment against the appellant Ira Bishop and Jacob E. Whisler and Abel Welsh, for $1,975.60 and costs taxed at twenty-five dollars, without relief from valuation, appraisement and stay laws of said State, which judgment was so recovered on a complaint founded on
By changes of venue, the cause went to the Madison Circuit Court.
The appellants severally demurred to the complaint for alleged want of statement of sufficient facts. The demurrers were overruled, .and these rulings are assigned as errors.
It is said that the complaint does not allege that McCann •had knowledge of the fraudulent intent of Ira Bishop, and it is claimed that, to affect the title of McCann, such an averment was necessary, notwithstanding the allegation that the conveyance to him was made without consideration; and that, if McCann’s title was good, that of his grantee must be good.
If the complaint could be construed as suggested by the appellants, the objection made could not be sustained. Where it is shown that the grantee in a conveyance made with intent to defraud creditors of the grantor was a volunteer, it is not necessary to the subjecting of the property to the demands of such creditors, that it be shown that the grantee had notice of the fraudulent intent. In connection with Spaulding v. Myers, 64 Ind. 264, cited by appellants, Spaulding v. Blythe, 73 Ind. 93, should be read.
No other ground of objection to the complaint is suggested. It was sufficient.
The appellants jointly answered by a general denial; and
To this separate pleading of Margaret Bishop, the appellee filed a general denial.
A trial by jury resulted in a verdict for the appellee'against the appellants as to the east eighty acres of the land described
A motion for a new trial was made by the appellants, which was overruled at the next term, and judgment was then rendered, whereby it was adjudged that said east one-half of said land was liable to sale on execution, under the judgment mentioned in the complaint.
, The overruling of the motion for a new trial is assigned as error.
The question of the sufficiency of the evidence to sustain the verdict was presented by the motion in different forms.
Among the causes stated in the motion were alleged errors in the giving of the sixth, seventh and eighth instructions to the jury.
Refusals to permit the introduction of evidence offered by the appellants were assigned as other causes.
There were other grounds alleged in the motion, the statement of which would lengthen our opinion unnecessarily, as they do not seem to need discussion.
We have carefully examined the evidence. It does not appear that it was proved upon the trial that, at the time of the «commencement of this suit, the appellant Ira Bishop had not sufficient other property to pay his debts.
That a conveyance may be complained of by creditors of the grantor, and adjudged void at their suit, on the ground that it was made with intent to hinder, delay or defraud such •creditors, they must be injured by it by reason of the fact that if it be allowed to stand, it withdraws the means of payment from their reach. It is only where the conveyance is thus injurious, that creditors can be heard to say that there was a fraudulent intent.
The question of fraudulent intent, under our statute, is always one of fact, and the conveyance can not be adjudged ■fraudulent as against creditors, solely on the ground that it was not founded on a valuable consideration.
Proof of a conveyance of property by a debtor, without a
It must not only be shown that the want of sufficient other property, subject to execution, out of which the plaintiff’s claim could be satisfied, existed at the time of the conveyance of the property in dispute, but there must also be evidence that it continued to exist at the commencement of the action. Ewing v. Patterson, 35 Ind. 326; Pence v. Croan, 51 Ind. 336; Sherman v. Hogland, 54 Ind. 578; Eagan v. Downing, 55 Ind. 65; Evans v. Hamilton, 56 Ind. 34; Bruker v. Kelsey, 72 Ind. 51; Lee v. Lee, 77 Ind. 251; Wooters v. Osborn, 77 Ind. 513.
The sixth instruction was as follows:
“ The defendant Margaret Bishop files an answer, alleging that she was the owner of one eighty of the land in controversy ; that her mother furnished her husband Ira Bishop the money to buy or enter the same for her; that Ira did enter it with her money, and, without her knowledge, or consent, took the title in his own name, and held it in trust for her, until August, 1877, when the deeds were made by which the legal title became vested in her. This the relator denies, and upon this paragraph of answer the burden shifts, and Margaret Bishop must prove its truth by a fair preponderance of the testimony. If the jury should believe from^the evidence, that the money of Margaret Bishop purchased the eighty acres of land entered by Ira Bishop, and he, Ira, took the title in his own name, without her knowledge'or consent, still, in a short time after the deed was so taken in Ira’s name, she learned the fact, and took no steps to recover the title, but suffered the title to remain in her husband for a period of twenty years after she knew the title was in him, and, on the faith of his being the owner of the land, Ira obtained credit and did business, and Margaret knew the fact, she would be estopped to>*73 set up her title, aud upon the answer you should find for the relator.”
It is urged by counsel, as an objection to this instruction, that it assumes the truth of facts which should be left to be found by the jury; that it assumes that, “ in a short time after the deed was so taken in Ira’s name, she learned the fact,” etc..
We think that, viewing the instruction as a whole, the propositions commencing with the words last quoted must be’ regarded as hypothetical, and that the word “ if” at the beginning of the sentence-should be considered as extending to-these propositions, or that word should be understood at the beginning of said last quoted words, where, for perspicuity, it should have been again written. Upon such construction, this objection to the instruction is not well founded.
The instruction is, however, otherwise objectionable. The-pleading of Margaret Bishop, therein referred to, was treated-throughout the case, by all the parties and by the court, as-an answer, and not as a pleading seeking affirmative relief-In the pleading itself, it is called an answer alone. 3STo pleading in response to it was sought from the co-defendant, and none was filed. The responsive pleading filed by the plaintiff was therein denominated a reply. In this instruction, the attention of the jury was directed to it as an answer solely and the judgment, while it subjected one portion of the land to the appellee’s judgment, did not purport to quiet the title-of said Margaret to the other portion. Therefore, if it were true, as claimed on behalf of the appellee, that its allegations-were sufficient to constitute a cross complaint, it having been treated against her, as well as by herself, as an answer, it is-proper that it should still be so treated in the consideration of her objection to the instruction.
If its allegations showed a sufficient defence, still they were all provablq under the general denial, which was also pleaded for they tended to negative the allegation of fraud. They constituted an argumentative and special denial of the fraud charged. Summers v. Hoover, 42 Ind. 153, 156. See, also,
The burden of an issue made by a special denial is upon the plaintiff, as well as that of an issue formed by a general denial. The burden of all the issues in this case was upon the plaintiff; and it was error to charge the jury that, upon the separate answer of Margaret Bishop, the burden shifted from the plaintiff to her.
It is not necessary to determine whether the facts mentioned in the instruction could constitute a valid estoppel, or, if they could, whether under the pleadings an estopjael could be made available in favor of the appellee, if the facts were shown by the evidence, or whether the instruction in this regard was applicable to„the evidence introduced. The court, upon a partial recital of the allegations of said separate answer, omitting its particular denial of the fraud charged, told the jury that upon this 'answer the burden was shifted from the plaintiff, and that she must prove the truth of the answer by a fair preponderance of the evidence. This was a confusing presentation of the case to the jury. The portion of the land as to which the jury found for the appellee was the portion specially mentioned in this instruction; and we can not say that the instruction did not confuse and mislead the jury.
The seventh instruction was as follows:
“And if you find the title to the east eighty had been in the defendant Ira Bishop continuously, from October, 1844, to'August, 1877, during which time he claimed it as his own, paid the taxes accruing on it, and improved it, using it as a home, and that he only transferred the title to his wife, after he had become deeply involved in debt, and that, too, without consideration, these are circumstances from which you may infer the deeds to that eighty are fraudulent as to his creditors.” t
If, as there was evidence tending to prove, the land in question was purchased by the husband with money given him by his wife’s mother for the express purpose of purchas
The eighth instruction was as follows:
“If you find from the evidence that the father of the defendant Ira furnished him the money to buy the first eighty, or that it was purchased with money that he had earned himself, and that he afterward, in 1877, conveyed the same away, without consideration, to his brother-in-law, who, the same day, transferred to Ira’s wifé, without consideration, when he, said Ira, was largely involved in debt, not leaving sufficient other property to pay his then existing debts, and that the debt mentioned in the complaint in this cause was then and still is unpaid, and the defendant Ira has no other property out of which to pay his debts, your finding as to this eighty should be in favor of the plaintiff.”
There was an interval of more than two years between the execution of the conveyances alleged to be fraudulent and the commencement of this action, and trial was had more than a year and a half later. The jury should have been required to find that the necessity for resort to this property existed at the commencement of the action. We have discussed this question above, at perhaps greater length than was needed, considering the settled condition of the authorities, some of which we have cited.
The offered evidence rejected by the court can not be examined. The motion for a new trial, in which these rulings were assigned as causes, was overruled at the next term after that at which it was filed. When the motion was overruled,
The judgment should be reversed.
Pee Cueiam. — Upon the foregoing opinion, the judgment is reversed, and the cause is remanded, with instructions to-grant a new trial.