59 Ind. 542 | Ind. | 1877
— This cause is now before this court for the second time. The opinion and decision of this court, when the case was here before, are reported under the title of Trueblood v. Hollingsworth, 48 Ind. 537.
It appeared therefrom, in substance, that in April, 1868, one John Carlisle, then owning two certain lots, particularly described, in the city of Indianapolis, leased fifty feet of said lots to one Albert Cox, for a term of ten years, at an annual rental of three hundred dollars, to be used for a livery-stable ; that, before said stable was built, said Cox assigned the lease to one David Mills, who, in the Summer of that year, began to erect the stable; that, before the stable was completed, Mills formed a partnership therein with one Andrew J. Lacey, who soon after assigned his interest therein to his brother, John Lacey; that on July 16th, 1868, at the instance and request of said John Lacey, and by the agreement of all the parties interested, a new lease was executed for the residue of the term, and for the same rental as in the old lease to Cox; that the new lease was made to John Lacey and one Layton Mills, the son of said David Mills, the said Layton taking the title to the one-half of said leasehold in trust for his father, said David Mills, and agreeing to so hold it for him; that said David Mills remained in possession of said stable, with John Lacey as his partner, till November 12th, 1868, wheri said Lacey sold his one-half thereof to the appellant; that the appellant and said David Mills then continued the business, as partners in the ownership of said stable, till January 5th, 1870, when the appellant purchased said David Mills’ one-half thereof; that, during the time they were partners, they enlarged the stable at a cost of five thousand dollars; that said Layton Mills never had any interest in
The appellees answered in two paragraphs.
In the first paragraph the appellees admitted the averments of the complaint, except that they denied that said Layton Mills agreed to take or hold the said demised premises in trust for said David Mills, or that said Layton received said grant as trustee for said David, or otherwise than in his own right, or that said David was in possession of said property, holding adversely to said Layton Mills; and they averred, that, if said David was in possession at any time, it was only as the agent of said Layton, and not otherwise.
In the second paragraph of their answer, the appellees did not, in terms, controvert any of the averments of the complaint; but they averred, that said Layton Mills took “ the title to the undivided oné-half of said leasehold interest in his own name, for the fraudulent and corrupt purpose, and with the corrupt and fraudulent intent, to cheat, hinder and delay the creditors of him, said David Mills, and to enable the said Layton Mills thereby to hold the same as against the creditors of said David Mills, and for no other purpose whatever.”
“1. On July 16th, 1868, was not the title to the half of the leasehold placed in the name of Layton Mills at the suggestion and for the accommodation of John Lacey ? :
“Answer. Yes.
“2. Did not Layton Mills, on July 16th, 1868, take the title to half of the leasehold, by agreement then made, to hold in trust for David Mills ?
“Answer. Yes.
“ 8. Did not he thus hold it in trust for David Mills . until March 11th, 1869, when he reassigned the lease to David Mills ?
“Answer. Yes.
“ 4. Did not the half of the leasehold held by Layton Mills belong, in fact, to David Mills at all times while the title was in the name of Layton Mills ?
“Answer. Yes.”
The appellees’ interrogatories to the jury, and the answers thereto, were as follows :
“1. Was any express agreement made between David Mills and Layton Mills, on the 16th day of July,. 1868, in Dye’s office, at the time the new lease was drawn,.*546 that Layton Mills should take the lease in his own name •and hold it in trust for his father, David Mills ?
“Answer. Yes.
2. Was not the agreement to substitute Layton Mills’ name for David Mills’ made at the request of John Lacey, and for the purpose of putting the title to the lease on the record in such shape that the claims of David Mills’ creditors could not attach thereto, and make him trouble ?
“Answer. Yes.
“ 8. Was not David Mills in debt, and were there not several judgments of the common pleas and circuit -courts on record in Marion county against him unsatisfied on the 16th day of July, 1868?
“Answer. Yes.
“ 4. Was not David Mills insolvent on the 16th day ■of July, 1868 ?
“Answer. Yes.”
The appellees then moved the court below for a judgment in their favor, on the special findings of the jury, notwithstanding the general verdict, which motion was ¡sustained, and judgment rendered accordingly, to which Judgment and decision the appellant excepted, and appealed therefrom to this court.
The appellant has assigned in this court, as errors, the following decisions of the court below:
1. In overruling the appellant’s demurrer to the sec-mid paragraph of the appellees’ answer;
2. In sustaining the appellees’ motion for a judgment in their favor, on the special findings of the jury, notwithstanding their general verdict; and,
3. In overruling the appellant’s motion for a new trial.
We will consider and decide what we regard as the material questions, presented by these alleged errors, in the order of their assignment. We have no brief of this cause from appellees’ counsel, in this court; and, therefore, we confess that we have found it difficult to com
In section 337 of the practice act, it is provided, that, “ "When the special finding of the facts is inconsistent with the general verdict, the former shall control the latter, and the court shall give judgment accordingly.” 2 R. S. 1876, p. 172. But, if there is no inconsistency between the special findings and the general verdict, and a new trial is not granted, of course the judgment should he rendered
The judgment is revei’sed, at the appellees’ costs, and the cause is remanded, with instructions to the court be-, low to render judgment, on the general verdict, for the-appellant, as prayed for in his complaint.
Petition for a rehearing overruled.