12 Ind. 259 | Ind. | 1859
Complaint by Tilton and Malony against Charles and John N. Raffing, to set aside a conveyance of certain real estate, made by Charles to John N. Raffing, on the ground that the conveyance was made to defraud the creditors of said Charles, the plaintiffs being such creditors, and having judgment against him. Margaret Ruffing, formerly wife of Charles, on her petition setting up a divorce from said Charles, and a decree against him for alimony, was made a party plaintiff, asking that the conveyance be set aside and her alimony made out of the premises.
There was a default as to Charles, but John IV". appeared' and answered. Issues were made up, and the cause tried by a jury, which resulted in a verdict and judgment for the plaintiffs, over a motion for a new trial.
Exception was taken to several rulings of the Court on demurrers, but no error is assigned upon these rulings.
The errors asssigned are as follows, viz.:
1. “Judgment was rendered for the appellees when it ought to have been rendered for the appellants.
2. “ The Court erred in giving the instructions asked for by the appellees, and in refusing instructions asked for by the appellants.
The first assignment is too general, and amounts to nothing. Kimball v. Sloss, 7 Ind. R. 589.—King v. Wilkins, 10 id. 216.
The evidence is not set out, and, therefore, we must presume that the instructions refused were inapplicable to the facts proven, and were therefore refused, if correct in the abstract. Woolley v. The State, 8 Ind. R. 502.
The instructions given, if not all entirely correct, are so in the main, and some of them are very clearly so. We cannot say that any of them are wrong under any supposable state of facts that might have been shown.
It is well settled that if, under any supposable state of the evidence, the instructions given could have been correct, it will be presumed, the record not showing the contrary, that that state did exist. Ind. Dig., p. 684, § 430. Some of the instructions asked were refused as asked, but given as modified by the Court. In the absence of the testimony, we presume the instructions, as asked, were properly refused.
The last error assigned relates to the ruling of the Court on the motion for a new trial.
The following are the reasons for which a new trial was asked, viz.:
1. “The Court erred in permitting the said Margaret. Ruffing to be made a co-plaintiff.
2. “ The verdict is contrary to law and the evidence in the case.
3. “ The Court erred in refusing to give the instructions asked for by the defendant, as asked for, which were refused.
4. “ The Court erred in giving the instructions asked for by plaintiff.
5. “ The verdict of the jury is contrary to the instructions of the Court and the evidence in the cause.
■ 6. “ The Court erred in permitting an argument, by the counsel for the.plaintiff to the Court, as to the form of the verdict, in presence of the jury, after they had been returned
7. “ Because the jury did not find whether the deed of conveyance from Charles Ruffing to John N. Ruffing, for the premises referred to in the complaint was a bona fide deed, executed for a valuable and fair consideration.”
The first reason for a new trial, we think, is insufficient, even on the supposition that a motion for a new trial was the remedy for the supposed error. Although the claims of the plaintiffs, Tilton and Malony, and Margaret Ruffing, were several and not joint, yet they were judgment creditors, and had a right to unite in a suit to set aside the fraudulent conveyance, and subject the property to the payment of their judgments. Kipper v. Glancey, 2 Blackf. 356. At least, the defendants had no right'to complain of her being made a party plaintiff. The other plaintiffs, if any one, were the persons injured by her coming in as a party, and they do not complain.
The second reason we will consider in connection with the seventh.
What we have said already, disposes of the third and fourth. The evidence not being before us, we have no means of determining whether there is anything in the fifth; but we must presume that the verdict is in accordance with the instructions of the Court, and the evidence in the cause.
The sixth reason for a new trial grows out of the following facts, as appears by the record. The jury returned into Court with a verdict, and upon being polled, some of them dissented from it. This verdict was not received. Thereupon, the Court permitted counsel for the plaintiffs to address the Court in the presence of the jury, as to the form of the verdict, to which exception was taken. Thereupon, the jury, after receiving additional instructions as to the form of their verdict, retired, and afterwards returned into Court with the verdict contained in the record, and, upon being polled, all assented thereto.
We are unable to perceive any error in permitting a discussion before the Court in the presence of the jury, as to
There was no general verdict found by the jury, but they returned the following special verdict in response to interrogatories put to them, viz.:
“The jury find that Charles Ruffing conveyed said premises to the said John N. Ruffing, for the purpose of defrauding his creditors; that said John N. Ruffing had knowledge of the fraudulent intentions of said Charles Ruffing; and that John N. Ruffing is still in possession of the premises alleged to have been thus fraudulently conveyed to him by said Charles.
“The jury find that said Charles did, at the time of making said deed, intend to abandon his wife; and that he executed said deed for the purpose of defrauding his wife out of her alimony; and the jury further find, that the said John N. Ruffing did make promises to the said Margaret Ruffing to procure her signature to the deed, without which promises, she would not have signed the deed.
. “ The jury find that said Charles afterwards abandoned his said wife, Margaret Ruffing, in pursuance of his intention at the time of the execution of the deed of conveyance by himself to John N. Ruffing; that Margaret after-wards obtained, in the Carroll Circuit Court, a decree of divorce, and for alimony, against said Charles, and upon her application, in consequence of such abandonment.
“The jury find that plaintiffs, Tilton and Malony, obtained judgment in the Carroll Circuit Court, against said Charles, on their debt against him for the sum of 368 dollars, 44 cents, on the 28th of August, 1852; that Margaret obtained her decree against Charles for alimony, to the amount of 600 dollars, on the 8th of May, 1854; and that at the commencement of the suit, said Charles had no other property out of which plaintiff’s claim could be made.”
The verdict is a special one, by which the jury found the facts only, leaving the judgment thereon to the Court. Such a verdict, the jury had a right to find, unless otherwise directed by the Court. 2 R. S. p. 114, § 336.
It is objected that the special verdict does not authorize the judgment in favor of Margaret Rvffing, because it does not find sufficient for that purpose. It finds that the property was conveyed by said Charles, for the purpose of defrauding his creditors, and that John N. had knowledge of such fraudulent intent. It also finds that at the time of executing the conveyance, said Charles intended to abandon his wife, and executed the deed for the purpose of defrauding her of her alimony; but it does not find that John N. had any knowledge of the latter contemplated fraud. This, it is insisted, is not sufficient to authorize a judgment in favor of Margaret, in the absence of any finding upon the question whether the deed was executed for a valuable and fair consideration.
A conveyance executed with the intent to defraud creditors, is not rendered valid by the circumstance that it was executed upon an adequate consideration. Rogers v. Evans, 3 Ind. R. 574.
Margaret, at the time of the execution of the conveyance, could not, perhaps, be considered a creditor; but it is said to be clear, that if a conveyance be made colorably with intent to defraud any existing creditor or creditors, it may be avoided by subsequent creditors; in other words, that evidence of collusion against existing creditors is sufficient evidence of fraud against subsequent creditors. 1 Am. Lead. Cases, 71, and authorities there cited.
Margaret became a creditor when she obtained her decree for alimony; and according to the above authority, she would have been entitled to have the conveyance set
Here, the jury have found the fraudulent collusion between Charles and John N., to defraud creditors then existing, and that is sufficient evidence against John N, to fix upon him a knowledge of the fraudulent intent of said Charles in respect to said Margaret When he purchased, John N. was apprised that the designs of his grantor were fraudulent, and having such knowledge, he participated in the fraud by taking a conveyance of the property, and he cannot be permitted to say that he was not apprised of the full extent of his vendor’s fraudulent designs. In this view of the case it is wholly immaterial whether the conveyance was voluntary, or made upon an adequate consideration.
We think the verdict was sufficient to authorize the judgment in favor of Margaret Rvffing as well as the other plaintiffs in the case.
But it is objected, that as Margaret joined in the deed of conveyance with Charles, knowing the same to have been made with intent to defraud creditors, she cannot now be permitted to take advantage of her own wrong, and ask the conveyance to be set aside for her own benefit.
In answer to this, it may be remarked that it nowhere appears that Margaret, at the time of the execution of the conveyance, was apprised of the fraudulent intent of her said husband. In her petition to be made plaintiff in the case, she alleges the conveyance to have been fraudulent; but no just interpretation of the language employed leads to the conclusion that she was cognizant of that fact at the time the conveyance was executed.
We have examined all the ei-rors assigned, and are of opinion that none of them is sufficient to reverse the judgment. Some other points are made in the brief of counsel, but not being assigned for error, we have not examined them.
The judgment is affirmed with 3 per cent, damages and costs.
