58 Ind. App. 370 | Ind. Ct. App. | 1914
Action by appellee Gretehen N. Stalcup and her husband against appellant to set aside a sheriff’s certificate, and to quiet title to a parcel of real estate in Clay County, Indiana.
Appellant levied an execution on the real estate mentioned in the complaint, the record title of which, at the time of the levy, was in Susan E. Brown, mother of appellee Gretehen N. Stalcup. After the levy and notice of sale,'Susan E. Brown, her husband joining in the deed, conveyed the property to her daughter Gretehen N. Stalcup, and her husband, Earl N. Stalcup, which deed was recorded before the sale. Afterward the sheriff sold the real estate to appellant, and issued to it a certificate of sale. Appellees then brought suit to quiet title to the real estate, alleging that appellee Gretehen N. Stalcup became the owner of same by purchase on December 17, 1906, she being then unmarried ; that, thereafter, in contemplation of her marriage with her coplaintiff, she contracted and agreed with the mother, Susan E. Brown, to convey to her said real estate in trust for the use and benefit of Gretehen N. Stalcup, it being agreed between appellee and her mother that the mother should, in carrying out the trust, convey the real estate to appellee Gretehen N. Stalcup, after her marriage, whenever directed to do so by her daughter, or if so directed, Susan E. Brown should sell the real estate and pay over the proceeds of the sale to Gretehen N. Stalcup. In accordance with the agreement and contract, Gretehen N. Stalcup, by her then maiden name, Gretehen Brown, on August 23, 1907, conveyed the real estate to Susan E. Brown, by deed of general warranty. It is averred that Susan E. Brown paid nothing whatever for the real estate; that there is no consideration for the conveyance and the only purpose of making it was to enable the grantee to hold the title in trust for the uses and purposes specified, which trust Susan E. Brown accepted; that after the execution of the last named deed,
The errors assigned are: (1) the complaint does not state facts sufficient to constitute a cause of action; (2) the court erred in overruling appellant’s motion for a new trial. The brief does not suggest .any infirmity in the complaint, and we have discovered none, so that the second assignment of error presents the only questions involved in this appeal. Errors in the giving and refusal to give certain instructions, and errors in the admission of certain evidence are set out in the motion for a new trial. The errors with respect to instructions given and refused are presented in groups. It is urged that instructions Nos. 1, 2, 3, 4, 12 and 13 given upon appellees’ motion are erroneous because they invade
The ease has been very ably and carefully briefed on behalf of appellant. We have examined all of the questions presented, and have read all of the instructions , given by the court, as well as those tendered by appellant, and not given, and we find no error which would warrant this court in reversing the ease.
Note. — Reported in 106 N. E. 395. As to proof of fraud in connection with fraudulent conveyances, see 11 Am. St. 757. Presumptions and. burden of proof as to fraud, see 1 Ann. Cas. 809. See, also, under (1) 20 Cyc. 395; (2) 17 Cyc. 1068; (3) 20 Cyc. 129; (4, 5) 20 Cyc. 108; (6) 38 Cyc. 1778; (7) 20 Cyc. 810, 809; 38 Cyc. 1749; 1657, 1663; (8) 3 Cyc. 348.