150 Ind. 679 | Ind. | 1898
Appellant brought this action to set aside a conveyance of real estate made by appellee, Hathaway, to his co-appellee, Haney Graham, as fraudulent, and subject the same to the payment of a judgment recovered by appellant against said Hathaway and others.
The assignment of errors calls in question the conclusion of law, the action of the court in overruling the motion for a new trial, and the motion to modify the judgment.
Appellant having failed to discuss the error assigned as to the conclusion of law, the same is waived. Chicago, etc., R. W. Co. v. Hunter, 128 Ind. 213, 221; Williams v. Potter, 72 Ind. 355, 357; Carper v. Kitt, 71 Ind. 24, 26; Boyd v. Fitch, 71 Ind. 306, 313.
The finding of the court upon the question of consideration is substantially as follows: About the month of February, 1884, appellee, Delmar H. Hathaway, came to the home of appellee, Nancy Graham, and has ever since resided there; they were in no way related to each other, and at the time he was received into her home there was no contract or agreement with reference to the charge to be made for his keeping, and that the services rendered by her in boarding, washing for, mending, making his clothes, and furnishing him with whatever was needful for his comfort and convenience were worth one hundred dollars per year. Soon after he reached the age of twenty-one years he recognized and acknowledged his debt to her. In February, 1894, about the time she commenced to care for said Hathaway, he received an estate from his grandmother which, when he arrived at twenty-one years of age, Feb. 5, 1893, amounted to $1,400.00, which was paid over to him by his guardian James Arnold, on Feb. 10, 1893. On March 23, 1893, he purchased the real estate in controversy, for which he gave his note
Appellant insists that the said finding as to the consideration for the conveyance of said real estate was not sustained by the evidence, and for that reason the court erred in overruling the motion for a new trial.
In determining whether said finding as to the consideration paid was sustained by the evidence, we can only consider such evidence as tends to sustain the finding, disregarding any evidence to the contrary, for the reason that if there is evidence sustaining the same, even though there may be evidence to the contrary, we can not weigh it, or determine the credibility of the witnesses.'
There was evidence, in substance, that when Delmar H. Hathaway was about eleven years old his mother died, an4 his father William.H. Hathaway intending to break up housekeeping, requested Mrs. Graham to keep him a while, until he, the father, was settled again. William H. Hathaway afterwards married, but never came after the boy; there was no agreement with the father to keep the boy, and she never de
Appellant insists that the evidence shows that the conveyance was voluntary, and was not based on a valuable consideration, for the reason that the law imposed the duty upon William H. Hathaway to maintain his son £)elmar, and as he left his son with Mrs. Graham, the law implied a promise on his part to pay her for her services and expenses in keeping and taking care of Delmar; that the indebtedness to Mrs. Graham was due from the father and not from the son.
We think the evidence authorized the court to find that the father by his failure to look after his son, or take care of him in any way, or to compensate those
In Hollingsworth v. Swedenborg, supra, this court quoted with approval from Farrell v. Farrell, supra, the following: “And although the general principle is clear and unquéstioned, that the father is entitled to the services of his minor child, and to all that such, child earns by his labor, yet, it seems equally clear, that, as the right of the father to the services of the child is founded upon his duty to support and maintain his child, if he should fail, neglect, or refuse to observe, and perform this duty, his right to the services of his child should cease to exist. And such we hold is the law.” In this case the father left his minor son temporarily with a neighbor, but never afterwards requested his return, or offered to pay for his maintenance and support; such conduct on the part of the father from the time his son was eleven years of age until he reached twenty-one was sufficient to sustain a finding that there was an emancipation of the son. The acts of the parties, Mrs. Graham and the father, clearly show that it was not the intention that the father should pay Mrs. Graham, but that it was the
We think that there was evidence showing that Delmar H. Hathaway was indebted to Mrs. Graham in the sum of $1,200.00, as found by the court, and that said indebtedness was the consideration for such conveyance.
What we have already said disposes of the question presented by the motion to modify the judgment. The judgment is affirmed. '