154 Ind. 163 | Ind. | 1899
Lead Opinion
Action by appellee to set aside an alleged fraudulent conveyance of real estate, and to recover damages for a breach of covenants of warranty contained in a deed executed by appellant and wife to appellee, purporting to convey to the latter certain described lands. The evidence is not before us, and the questions sought to be presented for review arise solely upon exceptions reserved to the court’s conclusions of law upon the special finding of facts, and in denying appellant’s demands for exemption as a resident householder, and in overruling certain motions made by him to modify the judgment.
After the conveyance of the said forty acres, appellant had left no other property subject to execution, and his said condition in this respect has ever since continued unchanged. The court’s conclusion upon the facts found is to the effect that the plaintiff is entitled to recover a personal judgment against defendant, Richard McNally, for the sum of $1,000, as damages for a breach of his covenants of warranty. Second, that the judgment rendered in the partition action by
A judgment for $1,000 was rendered in favor of the plaintiff, and the court, by its decree, set aside the conveyance in question, so far as it ¿ffected the rights of appellee, and ordered that the land be sold without appraisement, and the proceeds applied in accordance with the conclusions of law, Appellant reserved exceptions to the several conclusions of law. After the court had announced and filed its special finding of facts with its conclusions of law thereon, and prior to the rendition of judgment on said finding, appellant filed, and presented to the court, a verified application, whereby he demanded an exemption of $600 of property from sale as a resident householder. This demand, over appellant’s exceptions, the court denied. After judgment was rendered, appellant then moved the court to modify its judgment as follows: (1) 'That it direct in its judgment that appellant’s life estate in said land be not sold; (2) that the court order and direct that the land be sold upon execution, to be issued upon the judgment recovered, and not upon decree; (3) that the decree be so modified as to direct said land to be sold subject to appellant’s claim for exemption, and that the sheriff be ordered to allow
If appellant could have availed himself of any rights of exemption as a resident householder, he ought to have seasonably presented such question by answer, and tendered an issue thereon before trial. Certainly the. question of exemption could not be presented, as it was, after the court had filed its special finding, which is entirely silent upon this feature of the case. The matter of appellant’s exemption, if available to him in this case, could not be properly raised by the methods which he employed. Consequently, the court, for this reason alone, was justified in denying his demand for exemption. Chandler v. Jessup, 132 Ind. 351; Phenix Ins. Co. v. Fielder, 133 Ind. 557. But aside from the question as to the mode of procedure employed in this case, upon no view do we think appellant could have demanded in this action that the real estate in question, or the proceeds arising from the sale of the fee, should be awarded to him by the court, in whole or in part, as exempt. It is true that the property of a resident householder, which falls within the provisions of our exemption law, is not liable to the claims of creditors arising out of contract, and when the conveyance or transfer of said property to another is assailed by his creditors as fraudulent, as a general nile, it may be shown in such actions upon the trial, as a defense, that the property in dispute, at the time of the alleged fraudulent conveyance, under the provisions of the exemption statute, was beyond the reach of creditors, and that the latter were, therefore, not in a position to attack the transfer. Phenix
But this is not the question sought to be presented. In the case at bar, as the court finds and adjudges, appellant, having fraudulently conveyed his land to another, is not in an attitude, under the circumstances, to demand that the conveyance be annulled and the property turned over to him under his demand for exemption. The issue tendered by the complaint, in respect to the fraudulent conveyance, was more especially between the plaintiff and the party who claimed title to the land through said conveyance. Appellant, having fraudulently conveyed his property, certainly could not, for.his own benefit, legitimately reclaim it, or demand that the proceeds, arising out of the sale ordered by the court, be awarded to him under the provisions of our exemption laws. The decree of the court, setting aside the conveyance as fraudulent, against the rights of appellant’s creditors, in no manner served to reinvest him with title to the land. The decree simply established that the conveyance in controversy was null and void so far as it affected the rights of appellee, a creditor, in collecting his claim for damages. The conveyance in question, as between the grantor and his grantee, was valid, and was only open to the attack of the former’s creditors who were in a position to assail it as fraudulent. As to all others, it is valid, and must stand. Kitts v. Willson, 140 Ind. 604.
Section 715 Burns 1894, §703 R. S. 1881 and Homer 1897, provides that “An amount of property, not exceeding in value $600, owned by any resident householder, shall not be liable to salé on execution or any other final process from a court, for any debt growing out of or founded upon ¿ contract,” etc. As the land had been conveyed away by appellant, and, as we have heretofore said, the judgment of the court simply canceled such conveyance, so far as the rights of his creditors were concerned, and did not operate to invest him with the title of which he had devested himself, there
It is insisted that appellant ought to have been allowed an exemption out of the life estate which he seems to have reserved in the land. But if this be true, as heretofore stated, he ought to have interposed such claim by way of an answer, and had his rights in the matter determined upon the trial. Appellant can not successfully deny the right of the court, under the circumstances, to direct, as it did, that the land in controversy be sold upon a decretal order, instead of the sale being made upon execution. The rale is well settled that, in an action by creditors, in a court of equity, assailing a fraudulent transfer of property, the court may by its decree direct that the property be sold upon an order of sale instead of an execution. The creditor, having already been hindered in the collection of his debt, ought not, as a general proposition, be further delayed by being compelled to resort to an execution. Vandever v. Hardy, 51 Ind. 499; Bank v. White, 6 N. Y. 236, and cases cited; Miller v. Sherry, 2 Wall. 237; Neal v. Foster, 36 Fed. 29.
Neither did the court err in ordering that the sale of the real estate be made without the benefit of the appraisement law. The conveyance being fraudulent, as found by the court, the property was, consequently, under the express provisions of §755 Burns 1894, §743 R. S. 1881 and Horner 1897, subject to be sold without appraisement. Mugge v. Helgemeier, 81 Ind. 120.
It is next contended, that, under the specific facts set forth in the special finding, the court did not adopt the cor
Chancellor Rent, in his Commentaries, states the rule as follows: “The buyer, on the covenants of seisin, recovers back the consideration money and interest and no more. The interest is to countervail the claim for mesne profits, to which' the grantee is liable, and is, and ought to be, commensurate in point of time with the legal claim to mesne profits.” 4 Rent (12th ed.), 475.
The finding discloses that at the time of the conveyance of the land by appellant and wife, the latter owned and held in fee the undivided one-third thereof. This interest she had acquired by descent, as the widow of her former husband. Tier right, therefore, there being children alive by her previous marriage with Stern, during her subsequent coverture, to alienate her said interest in the land was, by virtue of section eighteen of the statute of descent, §2641
The court finds, as we have seen, that the part of the seventy acres from which appellee’s grantee, Patterson, was evicted, represented $666.65 of the purchase price of said seventy acres. The exact day in April, 1893, upon which the wife of appellant died is not disclosed by the court’s finding. Assuming, however, that it occurred on the fifteenth day of that month, the interest on said sum of $666.65, from that date to the time of the court’s finding, January 15, 1898, would be in round numbers $190; making the total amount, principal and interest, $856.65. This, we think, under the facts in this case, is the proper measure of appellee’s damages. The amount $1,000, assessed by the court, is in excess of the amount to which appellee is shown to have been entitled, and is, therefore, not sustained by the case or Mooney v. Burchard, 84 Ind. 285.
As to the effect of the warranty deeds obtained by appellant for the lands in dispute from the Stern heirs prior to his conveyance of the premises to appellee, we need intimate no opinion, as that question seems to have been determined and settled between the parties by the judgment of the Hancock Circuit Court, and all parties concerned seem to have abided by this judgment, and, be the same fight or wrong, it is not now open to review in this action.
We think that, under the facts found, the amount of recovery awarded by the court is too great in the sum of
If the appellee will, therefore, within thirty days from this date, enter a remittitur of $143.35 upon the judgment below as of the date of its rendition, it will be affirmed at his cost; otherwise, the judgment will be reversed, and the cause remanded to the lower court, with instructions to restate-its conclusions of law in respect to the amount of recovery, in accordance with this opinion, and to render judgment accordingly.
Rehearing
On Petition for Rehearing.
Appellant petitions for a rehearing in this case for the reasons asserted, among others, that we erred in holding that appellee was entitled to interest upon the amount of his damages from the death of appellant’s wife, instead of deciding, as it is insisted we should, that he is entitled to interest only from the date of the partition of the lands under the order of the Hancock Circuit Court. Second, that we erred in holding that appellant was not entitled, as a householder, to claim that his life estate in the lands in question was exempt from the sale under the decree.
We held in the original opinion that, under the pleadings in the case, no issue as to appellant’s right of exemption was tendered, and that it was too late to raise the question in the manner attempted after the filing of the court’s special finding. It is true there are some statements in the finding, in respect to the value of appellant’s life estate, and other property aside from the land in dispute, but in regard to the question of appellant’s being a resident householder, the finding is silent; and it is sought for the first time, under the application subsequently filed, to inject that issue into the case.
It is contended that appellant, under the general denial, which was the only answer filed by him, had the right to
It is true that the special finding discloses that appellant, by this deed, reserved unto himself the use, possession, and control of the land during his life; but this deed, as the court found, was fraudulent as to appellee, and the force and operation of the decree was to avoid or cancel it in doto, so far as it interfered with plaintiff’s rights as a complaining creditor. The conveyance by appellant of the fee to his grantee, and the reservation unto himself of a life estate, were a part of the same fraudulent transaction, and both depend upon the same deed of conveyance; and the fraud affected the deed as to both, so far, at least, as the rights of appellee, the complaining creditor, are concerned; and the law, under the circumstances, would not have justified the court in holding that the deed, conveying the land in fee, was void against appellee, but valid as to the reservation of the life estate therein.
Appellant can not demand, under the circumstances, that his fraudulent' deed be avoided only in part. If it is void, as against appellee, so far as it purported to convey the estate in fee simple to the grantee, it certainly can not be upheld as to the reservation of the life estate in question, to the extent of requiring that the land be sold subject to such encumbrance. The deed, being set aside, or canceled in its entirety, upon the grounds that it was fraudulent as against appellee, we fail to recognize how appellant can, under such circumstances, claim that his alleged life estate,
We have again considered all- of the questions involved in this ease, and are satisfied with the conclusions reached thereon at the original hearing. The petition is therefore overruled.