154 Ind. 225 | Ind. | 1900
This action was brought by appellee against appellants to enjoin the sale of certain personal property on execution. The court made a special finding of facts, and stated conclusions of law thereon in favor of appellee, and judgment was rendered thereon enjoining the sale of said personal property.
The errors assigned, and not waived by a failure to argue the same, are: (1) The complaint does not state facts sufficient to constitute a cause of action; (2) the court erred in its conclusions of law. It is not necessary to consider the first error assigned, for the reason that the same questions are also presented by the second.
It appears from the special finding that on August 4, 1897, one Jerry IUotz executed his promissory note to a bank in Noblesville, payable in sixty days from date, for a loan of $600, with appellee, Gascho, as surety, and at the same time he executed a bill of sale to said Gascho on twelve head of mules, to secure the latter from loss on account of said suretyship. When said note became due, Klotz and Gascho executed another note for the same amount, and the first note was canceled. Before said renewal note fell due, Klotz became insolvent, and on November 29, 1897, sold, by a bill of sale in writing, said twelve head of mules to Gascho, who assumed the payment of the said note for $600, as the purchase price for said mules, and paid the same when it fell due, in accordance with said agreement. The mules were delivered to said Gascho on November 30, 1897,
Klotz, although insolvent, had the right to prefer and save harmless appellee as his surety, and unless the sale of said mules was made with the fraudulent intent and purpose to cheat, hinder, and delay the creditors of said Klotz, and appellee had knowledge of such intent, it cannot be set aside. Rownd v. State, 152 Ind. 39; Levering v. Bimel, 146 Ind. 545; Straight v. Roberts, 126 Ind. 383; Gilbert v. McCorkle, 110 Ind. 215; Woolers v. Osborn, 77 Ind. 513. There is no finding that said sale was made for such purpose, or that it was fraudulent and void for any reason. Praud is not presumed, but must be proved, and, where it is essential to a recovery or defense, it must, where there is a special finding or special verdict, be found as a fact. Morgan v. Worden, 145 Ind. 600, 603, and cases cited; Parks v. Satterthwaite, 132. Ind. 411; Fulp v. Beaver, 136 Ind. 319. The finding that the mules were sold to appellee for $200 less than their value, at a time when Klotz was insolvent, is not equivalent to a finding that said sale was fraudulent and void. This was only a fact which the trial court had the right to consider with all the other facts in evidence in determining the ultimate fact whether or not said sale was fraudulent. Appellee’s title did not depend upon the bill of sale executed August 4, 1.897, to indemnify him from loss as security for Klotz, but upon the sale and delivery of said property to him in December, 1897; it is not material, therefore, whether or not the same was acknowledged and recorded, as required by §6638 Burns 1894, §4913 Horner 1897. The law did not require that the written agreement evidencing the sale of the mhles, executed December 3, 1897, be either acknowledged or recorded; said agreement was not, therefore, rendered fraudulent or void for that reason.' It is expressly found by the court that appellee purchased the personal property in controversy of Klotz, and
It is insisted by appellants that appellee was not entitled to an injunction, for the reason that he had a complete and adequate remedy at law, under §§1286, 1287 Burns 1894, §§1266, 1267 Horner 1897, by an action in replevin. It is provided by §1286 (1266), supra, that when any personal property taken on execution is claimed by any person other than the defendant, the owner may bring an action for the possession thereof. It was said by this court, however, in the Standard Oil Co. v. Bretz, 98 Ind. 231 on p. 232, “The action for replevin cannot be maintained unless the evidence shows that the defendant at the time of the commencement of the suit was in the actual or constructive possession of the property. Krug v. Herod, 69 Ind. 78; Louthain v. Fitzer, 78 Ind. 449.” In Wells on Replevin §142, it is said: “Where the defendant was an officer who had levied on property, but did not remove it, the defendant in the execution who still retained the goods, will not be permitted to sustain replevin against the officer, as the possession was still in himself [Hickey v. Hinsdale, 12 Mich. 100.]; but when an officer levies on goods, and takes an inventory, and directs a receiptor to prevent their removal, he has a sufficient possession to enable the owner to sustain replevin. [Fonda v. VanHorn, 15 Wend. 632.] And such a taking is sufficient ground on which to base an action against the officer.” This statement of the law is cited and approved in Louthain v. Fitzer, supra, and in the Standard Oil Co. v. Bretz, supra. See also Bacon v. Davis, 30 Mich. 157.
It will be observed that while the court found that the sheriff took possession of the mules when he made the levy, it is also shown by the finding that he did not remove them from the premises of appellee, where they were when the levy was made, but that they remained in the possession of appellee in his stable and on his premises from the time the
As, under the facts found, appellee could not have maintained replevin, it is not necessary to determine whether or not the remedy of replevin under our statutes is as plain, adequate, practical, and efficient, to the ends of justice and its prompt administration, as the remedy by injunction.
Judgment affirmed.