79 Ind. 430 | Ind. | 1881
Lead Opinion
— The complaint of the appellees charges, that a deed and mortgage executed by Jacob C. Loehr, in his lifetime, were made with the intent to cheat and defraud his. creditors, and asks to have them set aside and the property subjected to sale for the payment of his debt. The complaint is bad. A material allegation is lacking. It is not alleged, that, at the time the conveyances were made the grantor did not. have other property subject to execution, out of which the: claims of creditors could have been satisfied. It is well settled, that a complaint to set aside a conveyance as fraudulent must affirmatively show that the debtor did not have other property subject to execution at the time the conveyance was. made. Spaulding v. Blythe, 73 Ind. 93; Noble v. Hines, 72 Ind. 12 ; Pfeifer v. Snyder, 72 Ind. 78; Hardy v. Mitchell, 67 Ind. 485. It is also necessary to aver that the debtor did hot have' property other than that conveyed at the time the suit to set-aside the conveyance was instituted. Bruker v. Kelsey, 72 Ind. 51; Sherman v. Hogland, 73 Ind. 472. "Where property remains in the hands of the debtor, which can be reached by process of law, there is no reason for setting aside conveyances made by him. Before resorting to such a proceeding, property in the hands of the debtor should be first exhausted.
The allegation, that the debtor was in embarrassed and failing circumstances, is not equivalent to an averment that he did not possess property other than that conveyed, out of which the claims of creditors could have been made. It may be true that the debtor was financially embarrassed, and yet be the owner of property out of which the claims of creditors could have been satisfied.
The appellees’ cross error is well assigned. The court erred jn overruling the demurrer to the complaint.
The tenth instruction given by the court reads thus: “ But even if you believe that said Jacob B. Loehr intended to defraud his creditors at the time of making said conveyance, still you should not find for the plaintiffs unless the defendant Julia C. Loehr had a knowledge of such fraudulent intent on •the part of her husband, Avhether she paid any valuable consideration for such property or not.” This instruction is radically Avrong, Where the conveyance is purely voluntary, and the grantor has not other property out of Avhich the claims .of creditors can be satisfied, it may be set aside as fraudulent ngainst those to \yhom the grantor is at the time indebted. A man can not make gifts of his property, and thus take it from his creditors. Spaulding v. Blythe, supra ; Sherman v. Hogland, 73 Ind. 472; Wynne v. Cornelison, 52 Ind. 312; McCormick v. Hyatt, 33 Ind. 546,
It is insisted that other instructions were given, which cured the error contained in that under immediate mention. Contradictory instructions were given, and it was impossible for the jury to ascertain what rule of law the court intended to lay doAvn for their guidance. It is not for the jury to select from .contradictory instructions those which correctly express the law. It is the duty of the .court to state the rules of law without confusion or contradiction. Where an erroneous instruction is clearly and fully Avithdrawn, no harm results, but where it is simply contradicted by another instruction, it is otherAvise.
Judgment reversed, with instructions to tax all costs in this court, and in the trial court back to the filing of the complaint, against the appellants, and for further proceedings in accordance with this opinion.
Dissenting Opinion
dissents upon the ground that, as the complaint was insufficient to have supported a judgment in case one had been rendered upon it, in favor of the appellant, no> substantial injury was done to the appellant by erroneous rulings against him at the trial, and that consequently the appellant has no cause to complain that he was not permitted to obtain judgment upon his complaint.