This is thе second time this case has been in this court. It is reported in
“Be it remembered that the above cause, coming on to be heard, was, by agreement of parties, submitted to the court for trial; and the court, having heard all the evidence, and being sufficiently advised, at the request of the defendants, does make a special finding of the facts in the ease, and its conclusions of law therefrom, as follows:
“The court finds specially that the fоrty-acre tract of land mentioned and described in the complaint as belonging to Joseph Huston, was, on the 31st day of December, 1871, conveyed to him by the then owner thereof, one John Richardson, without аny consideration whatever, which conveyance was so made by said Richardson to said Huston for the purpose of defrauding the creditors of the said Richardson, ■of.which fraudulent intent the said Huston then and there had knowledge; that about three months after said transfer io said Huston by said Richardson, to wit, in March, 1872, .said Huston’s wife, Margaret, with the consent and at the request of her husband, and for the purpose of defrauding the creditors of the said Joseph Huston, bought said land of .said Richardson, and paid for the same the sum and price of sixteen hundred dollars. After the purchase of said tract of land by her as aforesaid, she movеd on and took possession •of the same, in pursuance of her said purchase, with the consent of Richardson, who subsequently moved off, and has continued thereon ever since with her said husband. The court finds that the purchase of said tract of land by said Margaret was made for the purpose of defrauding the creditors oí the.said Joseph Huston, for a price unknown to the court.
“The court finds that said Joseрh Huston was, at the date •of the defendant Clark’s execution, and still is, indebted in the sum of about five hundred dollars, and that he had not, at the date of said execution, and has not had since, any
“Harvey Cravens, Judge.”
The replevin bail is a surety merely, and is entitled to all the protection and immunity of other sureties. Hence, his property cannot be levied upon until the property of the principal, subject to levy and sale upon execution, has been exhausted. Elson v. O’Dowd,
It is firmly settled by repeated decisions in this State, that а contract for the sale or conveyance of property, to hinder or delay creditors, is illegal as to creditors only. As between the parties, and as to all others than creditors, it is legal аnd valid, and can be enforced in all of its terms as any other contract. Findley v. Cooley,
The conveyance from Richardson to Huston vested the title in the latter, subject tо the right of the creditors of the former to have it divested and the property subjected to sale for the payment of their debts. We are not advised that the creditors of Richardson have ever complained of such illegal and fraudulent conveyance. The conveyance vested a fee simple in Huston, and subjected the land to levy and sale for the payment of his debts.
It is further found by the court, that subsеquent to such conveyance, the wife of Pluston purchased the said ti’act of land of said Richardson, and paid therefor the sum of one thousand six hundred dollars; that Richardson conveyed the same to Mrs. Hustоn, who had taken possession, with her husband, and had since occupied it; and that this sale and conveyance were for the purpose of defrauding the creditors of Pluston. We are unable to see hоw this last conveyance could have been made for the purpose of defrauding the creditors of Huston, as Mrs. Pluston paid in cash, of her own money, nearly the value of such land. But, however this may be, we think that Mrs. Pluston acquired no title by such conveyance, for the plain and obvious reason that Richardson possessed no title to such land, he having conveyed the fee simple title to Huston. Nichol v. McCalister,
It is further found by the court, thаt the fee simple of the forty-acre tract of land above mentioned was, on the 7th day of February, 1874, duly and legally sold by the sheriff of Hamilton county, Indiana, for two hundred dollars, upon the execution of one P. P. Whitsell, which execution was issued upon a judgment against Joseph Pluston, in favor of said Whitsell, in the Hamilton Circuit Court, which judgment was a prior lien on said land to the defendant Clark’s judgment and execution.
The court finds, as a сonclusion of law upon the above facts, that, said land not having been sold for near its full
We think the court erred in its conclusion of law. The land was sold upon an execution issued upon a judgment which was a prior lien. The court found it was “ duly and legally sold.” The title of Huston would be divested by the sheriff’s sale and conveyance. There was nothing to sell. The only remedy was to redeem the land, and we do not think the judgment plaintiff was required to redeem the land and then subject it to sale, before he could proceed against the replevin bail. The execution plaintiff is required to exhaust the property of the judgment defendant, subject to sale upon exеcution, before he can proceed against the property of the replevin bail, but more than this he is not required to do. Nunemacher v. Ingle,
The property of Huston having been sold upon an execution issued upon a judgment which was a prior lien to the judgment in question, the replevin bail might have protected himself by redeeming the property from sale and compelling it to bring enough to satisfy both judgments. The judgment plaintiff might have dоne the same thing, but he was not required to do so before proceeding against the property of the replevin bail.
The judgment is reversed, with costs; and the cause is remanded, with directions to the court below to dissolve the injunction, and to render a judgment for the appellants upon the special finding of facts.