53 Ind. App. 56 | Ind. Ct. App. | 1913
— This is an action by appellee against appellants to set aside as fraudulent a mortgage executed by Walter H. Larch to appellant, Elizabeth Larch, who is the mother of Walter. Appellee filed with his complaint an affidavit and bond on which an order for writ of attachment was asked and obtained. During the pendency of the suit, Walter H. Larch died and Wilson Goodrich was appointed administrator of his estate and substituted as a defendant, whereupon a supplemental complaint was filed. A demurrer to the complaint was overruled and the cause put at issue by an answer in general denial. A trial of the cause by the court resulted in a finding and judgment for appellee setting aside the mortgage and for appellants on the attachment proceeding. A motion for new trial made by appellants was overruled and an appeal prayed. The errors assigned in this court and relied on for reversal call in question the sufficiency of the complaint to withstand a demurrer and the ruling on the motion for a new trial.
In addition to the facts before quoted from appellee’s brief, the undisputed evidence discloses further facts as follows : the will of Aaron Larch, deceased, was probated December 17, 1906, and said Walter and Elizabeth qualified as executor and executrix and on the next day, to wit: December 18, filed an inventory showing personal property appraised at $2,399.20. There was cash in the bank and notes belonging to said estate aggregating several thousand dollars, which for some reason were not placed on the inventory. The deceased, Aaron Larch, left ample property, both real and personal to pay all his debts, including said note on which appellee was surety for said Walter. The final report made and sworn to by Elizabeth Larch and her son Walter on January 5, was filed with the clerk of the court January 6, 1909, and was set for hearing on February 8, 1909. Notice of such hearing was issued on January 6, 1909. Appellee neglected to file his said note as a claim against said estate.
It is admitted by appellee that Walter Larch owed his
Judgment reversed with instructions to the court below to grant a new trial and for further proceedings consistent with this opinion.
Note. — Reported in 101 N. E. 127. See, also, under (1) 20 Cyc. 731, 732; (2) 20 Cyc. 743; (3) 20 Cyc. 784, 792; (4) 3 Cyc. 360; (5) 20 Cyc. 409; (0) 20 Cyc. 751; (7) 20 Cyc. 581; (8) 20 Cyc. 572, 597; (9) 20 Cyc. 472; (10) 20 Cyc. 590; (11) 20 Cyc. 794. As to the essential averments of pleadings attacking a conveyance as fraudulent, see 20 Am. Dec. 315. As to the intent of grantor as test of validity in respect of transfer alleged to be fraudulent, see 14 Am. St. 747. As to where the burden lies of proving fraud, see 11 Am. St. 758.