75 Ind. 278 | Ind. | 1881
This is an action for the recovery of personal property, and was instituted by the appellee against the appellants.
The paragraph of the answer under examination alleged that the property in controversy was owned by Elijah Sparks and Samuel Frazee, on the 16th day of October, 1876, and had been owned by them long prior thereto; that, prior to the date aforesaid, Sparks and Frazee had executed a note to Hibben & Co., on which Jesse Lane became surety ; that on the said day Hibben & Co. obtained judgment thereon against Sparks and Frazee'; that immediately after the rendition of said judgment, and before the issuing of an execution, Frazee and Sparks, fraudulently conspiring with appellee, transferred to him the property in controversy, for the purpose of defrauding the creditors of said Frazee and Sparks; that Lane, the surety, paid the principal and im terest of the said judgment, and thereafter caused an execm tion to be issued and the property to be seized; and that the appellants have possession of said property under and by virtue of said execution. The allegations of fraud are full, and the facts are sufficiently pleaded, and there can be no fault found with the answer, of which we have given only a bare outline, upon that score.
It is argued, with much earnestness and force, that fraud is a defence which must be affirmatively pleaded. This is unquestionably the general rule. Fraud in this case, however, is important only as showing property in a third person, the execution debtors. If the transfer to Allen Sparks was in good faith, then he could maintain the action, "but if it was the result of a fraudulent conspiracy to cheat the creditors of the vendors, then the action could not be maintained, for, so far as the creditors were concerned, theprop
We are asked to reverse upon the evidence. This we can not do. It is true that there is much conflict, and that upon some material points the evidence is not altogether satisfactory, but there is nothing to warrant an interference by us with the result reáched upon the trial.
Judgment affirmed.