72 Ind. 505 | Ind. | 1880
— The appeLlees sought to have a conveyance-to the appellant Emily J. Brown set aside upon the ground of fraud. Two objections are urged against the complaint. It 'is first objected that the complaint does not show that the grantor did not have other property subject to execution at the time the conveyance was made; but the objection is without foundation, for the allegations of the complaint are full and explicit upon this point. It is next objected that the-complaint does not show that the conveyance was without consideration. We think it does, but, if it did not, it very fully alleges that the grantor’s fraudulent intent was fully shared by the grantee, and this, of itself, would make the complaint sufficient as against the objection pressed by the appellants.
The case was tried by a jury, and a special verdict returned. Upon this verdict, judgment was entered in favor of the appellees. Appellants, by motion-in the court below, and here by their assignment .of errors,, insist that they were entitled to judgment on the verdict.
The verdict is divided into paragraphs appropriately numbered . Paragraphs numbered from one to three inclusive find the amounts due upon the respective claims of the appellees. Paragraph number four finds that conveyances were made by Harvey Brown and Emily J. Brown to Jonah G. Brown on the 18th day of February, 1875. Number five finds that no actual consideration was paid by Jonah G. Brown ; that, on the 27th day of the same month, Jonah G. Brown conveyed to Emily J. Brown ; that no consideration passed, and that the land was of the value of $4,000. In paragraph six is stated the amount of Harvey Brown’s indebtedness, which is placed at $11,705, and it is also stated that all the estate left him in Indiana, after conveying to Jonah G. Brown, ivas a certain tract therein described, of the value of $840, and that it was mortgaged to secure an indebtedness of $1,509. It is also stated in said paragraph
There is no finding establishing any participation in the ■alleged fraudulent act or intent of Harvey Brown, by Emily J. Brown. The verdict does find that the conveyance did, in fact, hinder and delay the creditors of Harvey Brown, but does not, in terms, find that the conveyances were executed with a fraudulent intent, of to carry into execution a fraudulent purpose. If, however, the verdict did find that the grantor was guilty of fraud, yet the grantee, if she paid a valuable consideration, would not be affected, unless she had notice of the fraudulent purpose of the grantor. The question in this case, therefore, resolves itself into this: Was Emily J. Brown a purchaser for a valuable consideration? If she was, she is entitled to judgment on the special verdict; for it does not appear that she had notice of or participated in her grantor’s alleged fraud. If she was not, judgment was rightly given the appellees ; for all the facts essential to the right of creditors to set aside a voluntary conveyance are found by the jury.
The contention of appellants’ counsel is that the relinquishment of’ the wife’s inchoate interest in the lands of her husband was a sufficient consideration to support a conveyance to her of part of the lands óf the husband. The
The doctrine is equitable and just. Nothing is taken from, the creditor, and nothing given to the wife, that is not right
There may of course be cases where the amount of property conveyed to the wife is so grossly disproportioned to the probable value of her inchoate interest as to work a fraud upon the creditors of the husband. This is not such a case. The complaint does not attack the conveyances upon any such ground; the theory upon which appellees proceed is altogether a different one. Their complaint attacks the conveyances upon two grounds : 1. That the conveyances were without consideration; 2. That there was a fraudulent design to defraud creditors. The verdict is against them upon both grounds, for it is well settled that the verdict is presumed to state all the facts which have been proved.
Appellees have assigned cress errors upon the action of the court in overruling a demurrer to the second paragraph of Emily J. Brown’s answer. The answer presents the same •questions as those arising upon the verdict, to which we have •already given sufficient consideration. It shows the agreement of her husband, Harvey Brown, to convey the lands to her in consideration that she would relinquish her inchoate interest in his lands; that she did execute such relinquishment, and that the conveyances were made to her in execution of said agreement. The agreement to convey to Mrs. Brown was valid, although not in writing. The contract was founded on a valuable consideration, and created a moral obligation, which the debtor had a right to discharge. Where there is an existing moral obligation, the debtor may waive the benefit of the statute. Goff v. Rogers, 71 Ind. 459.
Judgment reversed, at costs of appellees.