78 Ind. App. 569 | Ind. Ct. App. | 1922
— Judgment was rendered in this action in favor of appellee on its first paragraph of complaint, whereby it sought to have an alleged fraudulent
Appellants contend that the court erred in overruling their demurrer to appellee’s first paragraph of complaint. The only reason given by appellants supporting this contention, in that part of their brief devoted to a statement of propositions or points, is the following: “The first paragraph of complaint discloses on its face, that on the date of the filing of the demurrer more than 20 years had elapsed since the rendition of the judgment.” Based on this reason they have drawn the conclusion, that the court had no power to grant the relief sought, saying that the granting of such relief is limited to the life of the judgment. In view of the nature of the action, as stated above, the only reason for alleging the existence of the judgment in question was to show, that appellee was a creditor of appellant Joseph Webster Pensinger, and by reason of that fact had a right to attack the conveyance in question as fraudulent. Appellants in reaching the conclusion stated, evidently proceeded upon the theory, that, after the expiration of twenty years from its rendition, appellee’s judgment, whether actually satisfied or not,
Appellants also contend that the court erred in stating its second conclusion of law, which is as follows:
“That the deed executed by the defendants; under the name and style of Joseph W. Pensinger and Icy Pensinger, his wife, to the defendants, under the name and style of J. W. Pensinger and Isadora Pensinger, his wife, conveyed no title to the undivided one-eighth (%) of the lands described in said deed, which the defendant, Joseph Webster Pensinger, held under the 4th Item of the will of his father, the said Daniel Pensinger, and that in so far as said deed attempts to convey said interest or to divest the defendant, Joseph Webster Pensinger of said interest in said land, said deed is in law, void and of no effect, and that the plaintiff is entitled to have an execution on his judgment set out in his first paragraph of complaint and in these findings, and to have judgment accordingly.”
They appear to base their contention in this regard on the fact, that the court found that the judgment, which appellee set up in its first paragraph of complaint as a basis for its right to attack the alleged fraudulent conveyance, was recovered on May 4, 1897, which shows
Appellants cite §307 Burns 1914, §305 R. S. 1881, in support of their contention, which provides that “every judgment and decree of any court of record of the United States, or of this or any other state, shall be deemed satisfied after the expiration of twenty years.” If the legislature intended, by the enactment of this section, that all such judgments and decrees should not be enforceable after the expiration of twenty years, regardless of the fact that they may not have been paid or satisfied, there would be merit in appellants’ contention, since the existence of an indebtedness in favor of appellee was essential to its right to have the alleged conveyance set aside as fraudulent. Whitney v. Marshall (1894), 138 Ind. 472, 37 N. E. 964. However, such was not the legislative intent, as this
Such sale may be had, without recourse to formal proceedings under §717 Bums 1914, supra, as a court of equity, on declaring a conveyance of property void as in fraud of creditors in an action to vacate it, may and will proceed to do full and complete justice by ordering a sale of the property under its own direction. 27 C. J. 852; Vandever v. Hardy (1875), 51 Ind. 499; Simmons v. Busby (1889), 119 Ind. 13, 21 N. E. 451; Hadley v. Hood (1884), 94 Ind. 119; McNally v. White (1899), 154 Ind. 163, 54 N. E. 794, 56 N. E. 214. We conclude that the court did not err in stating the conclusion of law under consideration. Appellants having failed to show' any reversible error in the record, the judgment is affirmed.