118 Ind. 91 | Ind. | 1889
The second paragraph of the complaint in ■this cause, omitting the formal parts, is, substantially, as follows: That, on the 25th day of September, 1884, one John Laughlin was indebted to the appellee in the sum of eight hundred and thirty dollars On an account for boarding, supporting and maintaining the said Laughlin by the plaintiff at his special instance and request, and for the value of a house built by plaintiff at the special instance and request of ■said Laughlin, on the real estate hereinafter described, and for work and labor done and performed by plaintiff at the special instance and request of said Laughlin, a bill of particulars of which is filed with the complaint; that while so indebted to the plaintiff, said Laughlin, on the 24th day of ■September, 1884, conveyed to the defendant, Luther Hays, the following land owned by him, to wit: The southwest •quarter of the northwest quarter of section ten, township twenty north, of range seven. east, in Madison county, Indiana; * * that, at the time of said conveyance, said Hays had full notice and knowledge of the plaintiff’s claim against the said Laughlin; that no consideration passed from said Hays to said Laughlin at the time, but the only consideration for such conveyance was the agreement of said Hays to support, board and maintain the said Laughlin during his natural life, and for future benefits to accrue to said Laughlin ; that said Laughlin had no personal property, and by said ■conveyance stripped himself of all his property and became insolvent; that since this suit commenced said Laughlin’has died insolvent, leaving no estate whatever and no property, real or personal, out of which plaintiff can make his said ■debt or any part thereof; that the said Laughlin died intestate and left no widow or heirs at law; that no letters of administration have ever been granted upon his estate, and that there are no debts against said estate except the debt of the plaintiff. Prayer that the debt be declared a lien against ■said land and that it be foreclosed.
1st. That the same did not state facts sufficient to constitute a cause of action.
2d. That there is a defect of .parties, in that an administrator of the estate of Laughlin, deceased, should be made a party defendant.
The court overruled the demurrer, and the appellant excepted. The appellant filed an answer by way of general denial, and the cause was at issue. A trial resulted in the finding that Laughlin was indebted to the appellee in the sum of six hundred and fifty dollars, which the court declared to be a lien upon the land described in,the complaint, and a decree was entered for the sale of the land for the payment, of the same, over a motion by the appellant for a new trial.
A motion was made by the appellant to modify the decree, and also a motion to tax the appellee with costs, which motions were overruled, and the appellant excepted. The errors assigned in this court are:
1st. That the court erred in overruling the appellant’s-demurrer to the complaint.
2d. That the court erred in overruling the appellant’s motion for a new trial.
3d. That the court erred in overruling the appellant’s motion for a judgment for costs.
4th. That the court erred in sustaining the appellee’s motion for judgment on the verdict.
5th. That the court erred in overruling appellant’s motion to modify the judgment.
It is so well settled in this State that a pleading, if good at all, must be good on the theory upon which it is drawn, that a citation of authorities is unnecessary. If this complaint is drawn upon the theory that the general debts of a party conveying land without consideration constitute a lien upon such land, then it is bad, for they are not a lien. We know
The doctrine announced in the case of Potter v. Gracie, 29 Am. Rep. 748, is held not to be the law in this State. In the case of Willis v. Thompson, 93 Ind. 62, it was held that a conveyance made in consideration of an agreement on the part of the grantee to support and maintain the grantor during life, was a valid one, and where the grantee had performed the contract it became a valuable consideration, and in order to set aside such conveyance as fraudulent as against creditors it was necessary to aver and prove that such conveyance was made with the fraudulent intent to cheat and defraud creditors, and that the grantee, at the time of the conveyance, had notice of such intent. If the complaint was drafted on the theory that the conveyance was fraudulent as to creditors, it was also necessary that the administrator of 'Laughlin should be a party, for the reason that the appellee could only collect his claim through the administrator. If none had been appointed, it was the duty of the appellee to have one appointed before he could proceed with his action. Willis v. Thompson, supra; Allen v. Vestal, 60 Ind. 245.
We know of no theory upon which the complaint in this case can be sustained. The court erred in overruling the demurrer of the appellant to the complaint.
As we have reached the conclusion that the complaint in
Judgment reversed, at the costs of the appellee, and cause remanded with instructions to the circuit court to sustain the demurrer to the complaint, and for further proceedings not inconsistent with this opinion.
