33 Ind. 452 | Ind. | 1870
The complainants are judgment-creditors of Green, one of the defendants, except one of them, who held a mortgage on the' real estate in question. ■ The' action was brought to reach and subject to the payment of their claims, an interest which they allege Green had in a lot in the city of Logansport. Demurrer t® the complaint, which was overruled. Answer by Musselman in nine paragraphs. Demurrers ¡sustained to the second, fifth, sixth, seventh, eighth, and 'ninth. Replies to the third and fourth, by generail denial. Answer by Iianey, and issue thereon. The case -was commenced in the Cass Circuit Court, and, after two changes-of venue, was finally tried in the Carroll Circuit Court, where there was a special finding by the jury, in answer to interrogatories, which, by agreement of the parties, was to be regarded as a special -verdict, and on which final judgment was rendered for the plaintiffs.
The first question is as to the -sufficiency of the complaint. After alleging the recovery of the j udgments againstGreen,
It is further alleged that Musselman afterwards mortgaged the lot to Haney, to secure the payment of five thous- and dollars; that this was done to deceive the creditors of Green, and with a full knowledge of the facts by Haney; that Musselman owned other property of the value of one hundred and fifty thousand dollars, out of which Haney could make his debt.
The complaint also states the amount of rents received by Musselman, and that they amount to more than the money which he had paid out.
The prayer of the complaint is, first, that the lot be sold for the payment of the judgments and the mortgage, the plaintiffs agreeing to claim no priority among themselves.
Second, that Musselman be charged as trustee, and made to account for the rents, received by him.
Fourth, that Musselman be enjoined from selling or incumbering said premises, and on sale thereof that he unite in a deed therefor with his wife, conveying all their rights, with a clause against the incumbrance of Haney.
Fifth, that the deed from the State to Musselman and the deed from Green and wife to him be declared fraududulent and set aside.
There is also a prayer for general relief.
It is claimed by the appellant, that as relief is asked against Mrs. Green, she should have been made a party to the suit, and this is undoubtedly true. But the demurrer to the complaint was for the reason that it did not state facts sufficient to constitute a cause of action. To raise this question, the demurrer should have been for the statutory cause, that there was a defect of parties, and it should have named the person omitted. Collins v. Nave, 9 Ind. 209; Mandlove v. Lewis, id. 194; Gaines v. Walker, 16 Ind. 361.
Again, it is urged that the complaint is bad because it does not show such a trust as is valid under the statute on that subject. It is not alleged that the agreement between Green and Musselman, upon which it is claimed by the appellees the trust arises, was in writing, as required by the statute in the creation of trusts other than those which arise by implication of law, and no copy of any such agreement is made part of the complaint and filed with it. At common law, where a contract required by the statute of frauds to be in writing was declared on, it was not necessary to show in the declaration that the contract was in writing. But under our code, if the contract or a copy of it is not filed with the complaint, it will be presum'ed that the contract was not in writing, and the pleading setting up a contract in such a case will be held defective, on demurrer,
Does the complaint show a trust “ by implication of law ”? When a conveyance, for a valuable consideration, is made to one person, and the consideration paid by another, no use or trust arises in favor of the latter, but the title rests in the former, with some exceptions. 1 G. & H. 651, sec. 6.
One of the exceptions is, that every such conveyance shall be presumed fraudulent as against the creditors of the person paying the consideration therefor; and when a fraudulent intent is not disproved, a trust shall, in all cases result in favor of creditors. 1 G. & H. 651, sec. 7.
It is true that Green paid no money as a consideration, but it alleged that he had a right to have the sinking fund mortgage reinstated, and-thus save his property; that he was about to do this; and that he gave up this right, which was a valuable one. This we think was the payment of a consideration within the meaning of the sections of the statute above cited. ■ It was an interest in the lot which the creditors had. a right to follow, if it was conveyed away by him under such circumstances as would render the transaction fraudulent according to the statute against conveyances to defraud creditors.
The allegations of the complaint aye amply sufficient to show the transaction fraudulent as against the creditors of Green. It is alleged that the purpose was to hinder and delay the creditors of Green in the collection of their debts, and that Musselman participated in it with a full knowledge of the facts. This rendered the transaction fraudulent as to the creditors of Gyeen. Although it is provided in the statute declaring what lands shall be subject to execution, 2 G. & H. 263, sec. 526, that lands fraudulently conveyed with intent to delay or defraud creditors, and also land and any estate or interest therein liolden by any one in
The complaint is framed as if it were against an ordinary trustee, seeking an account, &c. But, in our opinion, a pex’son standing in the position of fraudulent gx’antee is not entitled to so much, consideration. If the transaction was fraudulent, it was void as to the creditox’S, and they wex’e not bound to refund the amount which he had paid, nor can he have a lien thex-efor on the property. It cannot be admitted that the payment of part or even the full value of property can pui’ge the transaction of its fraudulent chax’acter, if it was not made in good faith. Rogers v. Evans, 3 Ind. 574.
We think there was no error in overruling the demurrer to the complaint.
The next question is upon the ruling of the court in sustaining the demux’rer to the paragraphs of the answer of Musselman. The second paragraph is as follows: He says that the pretended fraud charged in the complaint accrued more than six year’s next before the bringing of this suit.
The statute of limitations looks to the time when the cause of action aecx'ues as the date from which the time is to be computed within which the action may be commenced. It is not alleged that the cause of action did not accrue within six yeax’s before the commexxcement of the suit. We approve also this action of the cix’cuit coux’t in holding this paragraph of the answer bad.
The next question is as to the correctness of the action of the circuit court in sustaining the demurrers to the fifth, sixth, seventh, eighth, and ninth paragraphs of the answer of Musselman* The fifth paragraphia as. follows: “John
It is also claimed that in cases of trust the statute does not run, but this is true only of trusts of a certain character. Those technical and continuing trusts of which courts of chancery alone had jurisdiction are of this character. Smith v. Calloway, 7 Blackf. 86.
We do not think the trust which the law forces upon the party in such a case as this is exempt from the operation of the statute. We think the demurrers should have been overruled, and that it was error to sustain them.
There were othei-questions raised during the progress of
The judgment is reversed, with costs, and the cause remanded for further proceedings.