147 Ind. 458 | Ind. | 1897
This was a proceeding by the appellee, as administrator, to sell lands to pay the debts of the estate of his decedent, and incidentally he sought to declare void certain conveyances to and incumbrances by the appellants, because of an alleged fraudulent conspiracy between the decedent and the appellants in making such conveyances and creating such incumbrances to defeat the creditors of the decedent, and because the same were voluntary and without consideration. On a former appeal in this case this proceeding was adjudged to be pursuant to and by virtue of the act for the settlement of decedent’s estates, and as to the appeal, was governed by the provisions of that act, sections 2609, 2610, Burns’ R. S. 1894 (2454, 2455, R. S. 1881), and that such an appeal was, therefore, required to be taken within thirty days from the filing of a bond, and that such bond should have been filed within ten days after the decision was made. See Galentine v. Wood, Admr., 137 Ind. 532. The first question presented upon this appeal arises upon the appellee’s motion to dismiss the appeal because not taken in compliance with the provisions of said act. Appellants do not question that their appeal should be governed by that act, but they insist that they have complied with its provisions. On June 17, 1892; upon special findings and conclusions of law, and over a
In Newark, etc., Plank Road Co. v. Elmer, 9 N. J. Eq. 754, it was held that if a decree leaves important questions open for further adjudication, it is not a
The principal appellants, those who assign error, are John K. Lawrence, Mary J. Lawrence, James H. Matchett and M. Alice Matchett, and they severally assign as error: 1, that the complaint did not state a cause of action; 2, that the court had no jurisdiction; 3, the overruling of a demurrer to the first paragraph of complaint; 4, the overruling of a demurrer to the second paragraph of complaint; 5, error in the conclusions of law stated; 6, overruling motion for venire de novo; 7, overruling motion for new trial; 8, overruling motion in arrest of judgment, and, 9, in rendering judgment June 13, 1895, ordering sale of the land. The first paragraph of complaint was filed April 6, 1888, and sought to set aside a voluntary deed made to John K. Lawrence' and James H. Matchett on the 23d day of April, 1882, by the decedent, his wife and Norris D. Galentine. It was alleged that the decedent departed this life March 13,1884, and there were allegations of fraudulent intent, the absence of other property, the existence of debts, the assertion of unfounded liens by the appellants and other allegations as to the necessity for selling said lands. The second paragraph of complaint, filed April 6, 1892, alleged a voluntary conveyance of a part of said lands on March 1st, 1882, by the decedent, to his sons, said Norris D. Galentine and Allen S. Galentine; the same facts as to the death of said decedent and the necessity for a sale of said lands to pay debts, and alleged that the
In the court’s special findings it is not stated that the suit, as to either paragraph, was brought within the statutory period, and it may well be doubted if the judgment was sufficiently supported without such finding. A more serious objection, however, to the findings in their support of the conclusions of law against the appellants as to their judgments and mortgage liens was that no fact was found with reference to the invalidity of such liens. The first paragraph of complaint specifically alleged the existence of liens of the character mentioned and sought to have them declared invalid for the alleged fraud. The court concluded, first, that the law was with the appellee, and, second, that the two deeds were invalid. The judgment was as broad as the conclusions of law, and declared that the appellants had no interest in or right to said lands and that the title be quieted in the appellee. This judgment could not stand as to the liens of the appellants without some fact to be found concerning the invalidity of the alleged liens. The question is not one where the silence of the findings raises the presumption of an adverse finding against the appellants. The issue, the invalidity of the apparent liens, devolved upon the appellee, and presumptions would arise rather against him. But since no motion for judgment in favor of the appellants was made their relief was by motion for a new trial or exceptions to the conclusions of law. Other assignments
The judgment of the lower court is reversed, with instructions to sustain the demurrer of the appellants to the second paragraph of complaint and to grant a new trial.