Doe v. Horn

Jun 1, 1849

Versions:1 Smith & H. 242

1 Ind. 363

Smith, J. —

This was an action of ejectment. Trial; verdict for defendant; motion for new trial overruled; and judgment accordingly.

The material facts given in evidence were as follow:

One Christopher Jourdan, under whom both parties claim, emigrated from Virginia to the county of Allen, in this state, about the year 1830. He represented himself, and was considered by his neighbors, a young unmarried man, and he acquired a reputation for morality and industry. In the year 1837, he courted and married Matilda Beard, a young woman of good character and respectable family. Her parents gave her an out-set suitable to their circumstances and Jourdan and the said Matilda lived together, without any suspicion by the latter in relation to the validity of the marriage. In March, 1841, a rumor appears to have reached the neighborhood that Jourdan had left a wife in Virginia, who was still living. About the same time, a claim for money due by Jourdan to one John Miller, was sent from Virginia to Thomas Johnson, Esq., of Fort Wayne, for collection. A suit was instituted accordingly, and Jourdan was arrested. To procure his release from arrest, he executed a cognovit on the 11th of March, 1841, for the confession of a judgment in favor of Miller for 702 dollars and 92 cents. On the next day, namely, the 12th of March, 1841, he prepared a deed which purports to convey several tracts of land to Matilda Beard, Margaret Ann and Mary Jane Jourdan, (the two latter children of the said Matilda by him during *364their cohabitation,) in • consideration of the payment of 2,000 dollars. After preparing the deed and before its delivery, Jourdan declared to two witnesses, that his object was to place the land beyond the reach of execution; that he had received no money from Matilda, but he preferred that she and her children should have it, rather than it should be sold to pay his debt to Miller. It appears that, soon after making these declarations, he went home, and his appearance indicating much agitation and distress, Matilda inquired of him what had happened. He then told her that he had greatly wronged her and her children, that he had a lawful wife in Virginia, and that to compensate her in some measure for the deceit and injury he had inflicted upon her, he had made her a deed for his land to enable her to support herself and his two children. He then delivered the deed to her, and that night left the neighborhood and never after returned. Matilda afterwards married Horn, the defendant.

A judgment was rendered upon the cognovit by the Allen Circuit Court at the April term, 1841. A fieri facias issued which was levied upon the premises in controversy. No sale having been made during the life of the execution, it was followed by a venditioni exponas and the property was bid off at a sale, by Johnson, the attorney of the judgment-plaintiff. The sale and proceedings under the venditioni exponas were afterwards set aside by the Circuit Court upon the motion of Jourdan. An alias writ of fieri facias issued on the 16th of December, 1844, under which the premises described in the declaration were sold to Hutchinson, the lessor of the plaintiff, who had become the owner of the judgment by assignment, and had notice of the existence of the deed before mentioned.

After the testimony was closed, a number of instructions were given to the jury at the request of the parties, some of which were to the effect, that the seduction of an innocent woman, under such circumstances as were disclosed in the present case, entitles the injured party to a compensation in money, and will be deemed in law a valuable consideration for a grant; and that if it ap*365peared from the evidence that the consideration of the deed from Jourdan to the said Matilda and her children was founded upon the recompense she was entitled to for the injury she had sustained, and the conveyance had been accepted by her as such compensation, they should find for the defendant.

The intention of Jourclan to defeat his creditor is clearly proved, but there is no proof whatever that Matilda had any knowledge of it. The case must therefore turn, so far as regards the property described in her deed, upon the nature of the consideration moving from her, for if that was valuable and adequate, the title of the grantee may be valid notwithstanding the fraudulent intention of the grantor. Brakes v. Brown, 2 Blackf. 295. We can have no doubt as to the legal right of Matilda, to claim a pecuniary compensation for the injury she had received through the deceit practised upon her by Jourdan, and we apprehend that no Court could easily define what would be an.adequate recompense for so grievous a wrong. To this extent we think the instructions are right, though they contain repetitions of the same principle in so many different forms and with so much looseness and uncertainty in the words and phrases used, that the whole taken together, seem better calculated to confuse the minds of a jury than to give them any clear idea of the questions really in issue or the law applicable to them. But the premises described in the declaration and in the sheriff’s deed to Hutchinson, consist of several tracts of land, one of which is not found in the deed from Jourdan to Matilda, and no defence having been interposed as to that tract, the lessor of the plaintiff was entitled to recover it, whatever might have been the state of the case as to that part of the property in controversy which was covered by the deed last mentioned.

It is contended by the counsel for the defendant in error, that, as the sheriff’s deed under which the lessor of the plaintiff claims bears a later date than that of the demise laid in the declaration, the plaintiff should have' been non-suited. But as the title of the plaintiff’s lessor *366relates back to the date of the judgment under which the premises were sold, it cannot be said that the demise is laid before the commencement of his title. Smith v. Allen, 1 Blackf. 22. It is also urged that the sale under the venditioni exponas was valid and created an outstandingtitle. That sale was, however, set aside by the Circuit Court, and it cannot be made a subject of inquiry in this suit, whether the Court acted erroneously or not in that matter.

R. Brackenridge and 11. Cooper, for the plaintiff. D. PL. Colerick and J. G. Walpole, for the defendant. Per Curiam. —

The judgment is reversed with costs. Cause remanded for a new trial.