164 Ind. 343 | Ind. | 1905
Appellee brought this action to recover a personal judgment against appellant Jacob A. Cannon upon a judgment in the Marshall Circuit Court against said appellant, and to set aside as fraudulent certain conveyances of real estate to appellants (who were and are husband and wife) as tenants by the entireties and subject the same to sale to pay said judgment. The court made a special finding of facts, and stated conclusions of law thereon against appellant Jacob A. Cannon for the amount due appellee and against both appellants as to a part of the real estate described in the complaint, and over a motion for a new trial rendered judgment accordingly in favor of appellee. Separate demurrers for want of facts of each appellant to each paragraph of the complaint were overruled by the court, and the said rulings and the second, third and fourth conclusions of law are separately assigned for error by each appellant.
The second paragraph of the complaint is sufficient, and, as the special finding of facts is under that paragraph, we need not determine as to the sufficiency of the first paragraph.
The special finding, so far as necessary to determine the correctness of the second, third and fourth conclusions of law, is substantially as follows-: On May 5, 1895, appellant Jacob A. Cannon became indebted to appellee, for which indebtedness appellee on November 13, 1897, recovered judgment for $520 and costs taxed at $72.27, in the Marshall Circuit Court. Appellant Widdie B. Cannon, wife of her co-appellant since 1886, knew of the existence of this claim of appellee after February, 1896, and of the
The second, third and fourth conclusions of law are to the effect that appellee is entitled to recover a personal judg
It will be observed that the written agreement to convey said real estate to appellants was executed about two months before appellant Jacob A. Cannon became indebted to appellee; that appellants paid for said land when the same was conveyed to appellant Jacob A. Cannon on August 2, 1895; that the conveyance was made to said .Jacob A. at the request of his wife, under an oral agreement that.he would recover judgment quieting the title to said land, and pay the expense thereof, and then have the same conveyed so as to vest the title in himself and his said wife as tenants by the entireties, and that in compliance with said oral agreement he did recover judgment quieting the title thereto, and caused the same to be conveyed to himself and wife as tenants by the entitreties.
1. If it were conceded that the oral agreement between appellants, that said Jacob A. Cannon would, when the title was quieted, cause the land to be conveyed to himself and wife as tenants by the entireties, was within the statute of frauds, and not, therefore, enforceable by her because not in uniting — a question we need not and do not decide — yet, as it was performed, and the title conveyed to appellants as tenants by the entireties in compliance with its terms, appellee has no right to complain on the ground that the same was not in writing. An oral contract which is within the statute of frauds is not void; the statute only forbids the maintenance of an action to enforce it. Such a defense is personal to the parties to the contract, and as such can not be made available by a stranger thereto. Cool v. Peters Box, etc., Co. (1882), 87 Ind. 531, 538, 539, and cases cited; Morrison v. Collier (1881), 79 Ind. 417; Dixon v. Duke (1882), 85 Ind. 434, 439, and cases cited; Bodkin v. Merit (1885), 102 Ind. 293, 298; Burrow v. Terre Haute, etc., R. Co. (1886), 107 Ind. 432, 438; Jackson v. Stanfield
2. By the written contract for the sale and conveyance of said 160 acres of land to appellants in March, 1895, they became the owners of the equitable title thereto, and on August 2, 1895, when the deed therefor was made to appellant Jacob A. Cannon at the request of his wife under the oral agreement heretofore mentioned, the legal title vested in him, but the equitable title remained in himself and wife, and so' continued until the execution of the deeds of March 21 -and 22, 1899, when the legal title vested in them as tenants by the entireties. Their right and title to said land as against appellee, therefore, are the same as if said deeds had been executed on August 2, 1895, and the legal title thereto had then vested in them, and depend upon the facts and circumstances at the date of the purchase of the land and the execution of the deed of August 2, 1895.
3. When a creditor of a grantor attacks his conveyance on the ground that it was fraudulent, he must aver and prove that when the conveyance was made the debtor was insolvent, and did not have enough property subject to execution to pay his then existing debts, and that he had no property subject to execution when the suit was brought. Line v. State, ex rel. (1892), 131 Ind. 468; Sell v. Bailey (1889), 119 Ind. 51; Bruker v. Kelsey (1880), 72 Ind. 51, 53, 54; Sherman v. Hogland (1881), 73 Ind. 472; Phelps v. Smith (1888), 116 Ind. 387, 394; Emerson v. Opp (1894), 139 Ind. 27, 30; Rose v. Colter (1881), 76 Ind. 590, 592, 593. It was said in Emerson v. Opp, supra, at page 30: “In the case of Rose v. Colter [1881], 76 Ind. 590, it was held that if the debtor retained property sufficient to pay his debts, and from which the debts might be enforced upon execution, his subsequent insolvency would not permit a conveyance, otherwise fraudulent, to be set aside.”
4. ' There is no finding that said 160 acres of land was purchased by appellants in March, 1895, with any fraudu
Judgment reversed, with instructions to restate the second, third and fourth conclusions of law to the effect that the tract of 160 acres of real estate described in the second conclusion of law is free and clear from the lien of appellee’s judgment, and is not subject to sale to satisfy said judgment, and that appellee is entitled to recover judgment against Jacob A. Cannon in the sum of $754.47, with interest from January 19, 1903, and render judgment thereon accordingly.