115 Ind. 474 | Ind. | 1888
In December, ,1884, Charles S. Hubbard, appellee herein, conveyed real estate to his wife, his co-defendant below, and co-appellee here. Appellants, to whom he was indebted, subsequently instituted this action against him and his wife to set aside the conveyance as fraudulent as to them and his other creditors. The cause was tried by the court and resulted in a finding and judgment in favor of the defendants for costs.
Appellants contend that the judgment is not sustained by sufficient evidence. We have read all of the evidence carefully, and are well satisfied that the judgment can not be reversed by reason of its insufficiency.
It is so well settled by the decisions of this court that a judgment will not be reversed upon the weight of the evidence, if there is evidence fairly tending to sustain it, that it is not necessary to cite cases, nor, indeed, to re-state the rule. Here, the evidence not only tends to sustain the finding and judgment, but makes it quite apparent that the court
If it should be conceded that Hubbard had a fraudulent intent in the conveyance to his wife, there is no evidence at all that she had any notice of such intent. As already stated, at the time of the conveyance to her, he was engaged in selling boots and shoes, and had a stock of the value of $5,-000. She testified that she know that he was indebted to
Hubbard knew that he was insolvent, and in making the conveyance to his wife doubtless intended to give her a preference, as he subsequently preferred other creditors. The conveyance to Mrs. Hubbard seems to have been first suggested by Mr. Butler, a brother-in-law, who was Hubbard’s, attorney, and knew of his insolvent condition. He suggested to her that she had better have a deed for the property, as she had no security for the amount which her husband owed her, but he did not inform her of her husband’s insolvency. He also suggested the matter to Hubbard, and wrote the deed, which was soon after executed.
It is contended by appellants that the price paid by Mrs. Hubbard was inadequate, and that such inadequacy is an evidence of fraud. We do not think so.
In 1857 Mrs. Hubbard received $200 from her father. In 1861 she received the further sum of $100 from him. These sums she turned over to her husband to be used in the construction of the house which was included in the conveyance to her from her husband. It was so used. After her father’s death, in 1876, she received $422 from his estate. Of that amount she again turned over to her husband $122, to be used in repairing the property, and it was so used. For the balance — $300—he gave her his note, drawing six per cent, .interest.
If the sums thus used in the construction and repair of the house, with interest thereon, should be charged against Hubbard as a debt due to his wife, his indebtedness to her was at least $700, as she testified it was, at the time the deed was executed. But it is not necessary to charge him with those sums in order to uphold the conveyance, and hence we do not decide the questions above suggested.
So far as concerns the number of witnesses, the preponderance of the evidence is that the property conveyed to Mrs. Hubbard was not worth over $1,000, if, indeed, that much. In'support of the judgment, it ought to be assumed that the court below found that the property was not worth over $1,000. The note for $300 was made in 1876. The conveyance was made in December, 1884. From the date of the note to the date of the conveyance, was about eight years. Two years interest had been paid. There, was, therefore, about six years interest due which amounted to about $108, making the total amount due upon the note about $408. That was the amount which Mrs. Hubbard paid for the property, leaving out of the calculation the other sums above mentioned. The difference between the amount thus paid, and the value of the property, was $592. But it must be remembered that, under our statute, the wife’s one-third interest in the real estate could not have been subjected to sale, and that upon the sale of the- property upon execution in satisfaction of the husband’s debts, and the making of the deed in pursuance of such sale, she would have been entitled to claim the one-third in severalty. Two-thirds of the prop
An execution had been issued against Hubbard’s property prior to the institution of this action, and was levied upon the personal property which he then owned. He claimed his exemption, and the whole of the property so levied upon, amounting to $319 in value, was set off to him. Assuming that if the conveyance to his wife had not been made, the real estate so conveyed would have been taken under an execution, and that Hubbard would have claimed his exemption from the personal property, as he did, he would still have been entitled, and would yet be entitled, to claim from the real estate the difference between $600 and $319, the value of the personal property so set off to him. He would thus have been entitled, and would yet be entitled, to claim from the real estate $281 in value. That amount added to the wife’s one-third would make $614.33 to be deducted from $1,000, the value of the real estate, in order to ascertain just how much was placed, or was attempted to be placed, beyond the reach of creditors by the conveyance to the wife. The
Without any question, she paid more than that sum for the real estate by the surrender of her note for $300 and the accumulated interest, amounting in all to about $408.
It will thus be seen, also, that no possible benefit could.' accrue to the creditors should the conveyance to Mrs. Hubbard be set aside. When such is the case a court of equity will not interfere. Smith v. Selz, 114 Ind. 229.
It is suggested, rather than argued, that the court below erred in admitting certain testimony by Charles Butler. As already stated, he was a brother-in-law of the appellees, and the attorney for Hubbard. In response to a question by counsel for appellee he was allowed to state that prior to the execution of the deed to Mrs. Hubbard he suggested to her that, as her husband was indebted to her, she had better have a deed from him for the property here in dispute. Without examining the question further, it is entirely sufficient to say that the same conversation between Butler and Mrs. Hubbard was drawn out by appellants upon the cross-examination of Mrs. Hubbard. They are, therefore, íd no condition to object to appellees bringing forward the same evidence in the examination of Butler. Nor could they have been injured by a reproduction of the facts which they had thus voluntarily elicited in the cross-examination of Mrs. Hubbard.
Having found no error in the rulings of the court below, the judgment is affirmed, with costs.