70 Ind. 418 | Ind. | 1879
— This was a suit by the appellant Sarah H. Geisendorffj against the appellees, to recover the possession of certain personal property, and damages for the unlawful detention thereof. In her complaint, the appellant alleged, in substance, that she was the owner and entitled to the possession of the ice contained in the three,ice-houses situated farthest north, built and owned by Jacob C. Geisendorff and situated on the banks of the reservoir at Rome City, Noble county, Indiana, which said ice, as she was informed and believed, was of the value of seven thousand dollars, and had been unlawfully taken by the appellee Nathaniel P. Eagles, sheriff of said county, and was then
This complaint was verified by the oath of the appellants’agent; and, an undertaking having been filed, the property described in the complaint was surrendered to the appellants, the plaintiffs below.
Each of the appellees answered the appellants’ complaint, by a general denial thereof. The issues joined were tried by the court without a jury, and a finding was made for the appellees. The appellants’ motion for a new triahwas overruled, and to this ruling they excepted ; and the court rendered judgment against the appellants, upon and in accordance, with its finding.
In this court, the appellants jointly assigned, as error, the decision of the court below in overruling their joint motion for a new trial; and the appellant Jacob C. Geis.endorff separately assigned, as error, the judgment of the court below, against him, for the value of the property in controversy.
In their motion for a new trial, the appellants jointly assigned the following causes therefor:
1. That the finding of the court was not sustained by sufficient, evidence;
2. That the finding of the court was contrary to law;
3. That the damages were excessive :
4. Error in the assessment of the amount of recovery, In this, that the amount was too large. 1
In section 8 of “An act for the prevention of frauds and perjuries,” etc., approved June 9th, 1852, it is provided, as follows: “ Every sale maje by a vendor of goods in his possession, or under his control, unless the same be accompanied by immediate delivery, and followed by an actual change of the possession of the things sold, shall be presumed to be fraudulent and void, as against the creditors of the vendor, or subsequent purchasers in good faith, unless it shall be made to appear, that the same was made in good faith and without any intent to defraud such creditors or purchasers.” 1 R. S. 1876, p. 505.
It will be seen from the provisions of this section, and under the facts of this case as above stated, that the sale of the ice in controversy to the appellant Sarah H. Geisendorff, by her husband,Jacob C. Geisendorff", was presumptively fraudulent and void, as against his creditors, two of whom were the appellees John O. Hall anJ Mary Haughton. To remove this presumption, it was necessary that
The important and controlling questions in this ease, as it- seems to us, arise under the second and third causes for a new trial. Were the damages assessed against the appellants excessive? Did the court err in its assessment of the amount of the appellees’ recovery? In our opinion, these questions ought to and must be answered in the affirmative. The court was not requested by either of the parties to make a special finding of the facts in this case; and, therefore, the finding, although it contained a recital of facts found, can only be regarded as a general finding. Nash v. Caywood, 39 Ind. 437; Conwell v. Clifford, 45 Ind. 392; and Caress v. Foster, 62 Ind. 145.
As necessary to the proper presentation and understanding of the questions under consideration, we will give the substance of the facts found by the court, as recited in its finding. After stating the finding for the defendants, the appellees, the record proceeds as follows: “The court further finds, that, at the commencement of this action,
Upon this finding, the court rendered judgment in favor of the appellee Nathaniel P. Eagles, as such sheriff, for the full sum of five thousand five hundred dollars, and the costs of suit; and it was further adjudged that the payment to the appellees John C. Hall and Mary C. .Haughton, of the amounts due on their respective judgments, of principal, interest and costs, and the costs of this action, would be a satisfaction of the judgment rendered in this action, and that, in default of such payment, and upon the collection of the judgment in this action, after the payment of the costs of this action and the amounts due said John C. Hall and Mary O. Haughton, on their respective judgments, the surplus, if any, should be paid to the clerk of the court for the appellants, the plaintiffs below, or whomsoever might by law be entitled thereto.
On the trial of this cause, the appellees gave in evidence three chattel mortgages on the ice in controversy, executed
1. One dated February 20th, 1876, to J. M. Ridenour, president of the Central Bank of Indianapolis, Indiana, to secure the payment of two promissory notes, particularly described, evidencing the indebtedness of said Jacob C. Geisendorff’ to said Central Bank, and amounting in the aggregate to the sum of four thousand eight hundred and eighty-six dollars and seventy-eight cents;
2. One dated March 28th, 1876, to Frederick A. W. Davis, trustee, to secure the payment of the indebtedness of said Jacob C. Geisendorff', particularly described, to said F. A. W. Davis, amounting in the aggregate to the sum of three thousand dollars; and,
8. One dated March 29th, 1876, to Frederick A. W. Davis, cashier of the Indiana Bauking Company, to secure the payment of the note of said Jacob C. Geisendorff for six.hundred and ninety dollars, of even date with said mortgage, and payable sixty days after date to said Banking Company.
It will be readily seen, that the lien of each one of these chattel mortgages is older than the lien of the executions in favor of the appellees John C. Hall and Mary C. Haughton, on the property in controversy in this action. In section 436 of the practice act, it is provided that “ Goods and chattels pledged, assigned or mortgaged as security for any debt or contract, may be levied upon and sold on execution against the person making the pledge, assignment or mortgage, subject thereto, and the purchaser shall be entitled to the possession, upon complying with the conditions of the pledge, assignment or mortgage.” 2 R. S. 1876, p. 207.
Under the provisions of this section of the code, it is certain, we think, that the ice described in the com
In our view of this cause, the court clearly erred in its assessment of the amount of the appellees’ recovery. ' Having ascertained, as it did, the value of the ice described in the appellants’ complaint, we think the court should have then pi’oeeeded to enquire into and ascertain the value of the interest of the execution defendant in such
Whatever may have been the object of the appellees in
The judgment is reversed, at the appellees’ costs, and the cause is remanded, with instructions to sustain the motion for a new trial, and for farther proceedings in accordance with this opinion.