86 Ind. 224 | Ind. | 1882
Lead Opinion
Action by the appellant to set aside as fraudulent a conveyance of real estate made by the appellees Joshua W. and Margaret B. Copeland to their daughter, the appellee Margaret B. Copeland, Jr.
The first question presented in the ease is one of practice, and arises upon the motion of the appellant to have the answer of the defendant Margaret, Jr., struck from the files, because of her failure to appear according to notice given her and her co-defendants, for examination, as a party, before the trial, as provided in section 296 of the code of 1852. R. S. 1881, sec. 510. The record shows a notice signed by the attorneys of the appellant, requiring the said Margaret, Jr., to appear at a time and place specified, for her examination, and her failure to appear. The return of the sheriff upon this notice shows a service upon the defendants, all by reading, and upon the said Margaret, Jr., by copy also, more than five days
1st. Because, the contrary not being shown, it must be presumed that a good excuse for the failure to obey the notice was shown.
2d. Because the notice was not properly served, in this r that a copy of the notice should have been left with each of the defendants, as well as with the one whom it was proposed to examine.
3d. That the service of a summons issued by the officer before whom the examination was to be had? or an order of court, was necessary to compel the attendance of the party, or to put her in contempt for failure to attend.
Deciding nothing upon the second and third propositions, we deem the first good. The statute is that a “ party refusing to attend and testify, * * may be punished as for a contempt; and his complaint, answer, or reply may be stricken out.” R.. S. 1881, sec. 513,
The next point to be considered goes to the merits of the case. The question is presented in several ways in the record whether the conveyance in dispute was made upon a valuable consideration. If it was, it must stand, but, if not, the appellant ought to prevail.
It is conceded that the grantee paid nothing, but it is insisted that her mother paid a full and valuable consideration. If so, it was as follows:
In 1868 Joshua and Margaret Copeland, being husband and wife, had been for some years in partnership in the millinery business, Mrs. Copeland having put $1,000 of ’ her own money into the business; they then took Charles Annan into the firm, upon an agreement that each partner should have one-third of the profits of the business. Large profits aceruéd, and, the said Joshua having overdrawn his share thereof
Counsel for appellant, in their brief, say: “ The appellant in- ■ sists that a husband and wife .could not be partners in a mercantile business, and the husband was entitled to all of the profits, and, therefore, the $8,000 of profits, which was the consideration of the deed, was the husband’s money; or, if it be held that the husband relinquished to his wife such profits, the relinquishment was not executed and completed till long after • he was indebted to the plaintiff, and, therefore, the deed is-invalid as to the plaintiff.”
It is doubtless true that the wife had no power to bind herself by the contract of partnership, or to incur any personal liability as a partner in the business; nevertheless, it was competent for the husband and other partner, after his admission to the firm, to permit her to share in the business, which, in
It may be suggested that the contract may be deemed to have an element of consideration in the fact that Annan was a party to the agreement on which it was based. As a member of the firm, he might have insisted that Joshua Copeland should repay what he had overdrawn, instead of the debt being cancelled as it was and the assets of the concern thereby diminished. In this view it can not be said, if otherwise it might be, that the agreement to convey the land rested upon a division, between husband and wife alone, of profits which the husband might lawfully have taken as his own. There was in the transaction a surrender by a third person of an important right; one, at least, which may have been important.
Judgment affirmed.
Rehearing
On Petition for a Rehearing.
A rehearing is asked because it was not decided “ whether the deed was delivered to the appellee Margaret, Jr., prior to the rendition of appellant’s judgment,” nor “ the effect thereof in case it was not so delivered.”
When the conclusion was reached that the contract for the conveyance rested upon a valuable consideration, and was therefore valid and binding, it became immaterial whether or not there was a delivery of the deed before the rendition of the judgment. The contract having been made and the consideration paid or executed, a conveyance under the contract
Upon the evidence in respect to the delivery of the deed,, if the case depended on that, the verdict could not be disturbed.
Petition overruled.