147 N.E. 734 | Ind. Ct. App. | 1925
Action by Gustave H. Esch against appellee for divorce. Appellee filed her amended cross-complaint against him for divorce and for alimony and made appellant and two others defendants thereto for the purpose of setting aside conveyances alleged to have been made to them fraudulently by said Gustave H. Esch. He is mentioned as appellant, but it does not appear that he filed any motion for a new trial or filed any appeal bond, or took any steps to perfect his appeal. Nothing is presented as to him and we give no consideration, therefore, as to any issues joined with him. *249
Appellee answered the amended complaint and a supplemental complaint in general denial and by plea of condonation. Issues upon an original cross-complaint of the appellee were formed by a demurrer thereto, which was overruled, and thereupon an answer of general denial was filed by each of the defendants to the cross-complaint. After the evidence had all been heard, appellee filed her amended cross-complaint. No demurrers or answers were filed to the amended cross-complaint.
The court found against plaintiff on his complaint and for appellee upon her cross-complaint, decreeing her a divorce from the plaintiff and awarding her alimony in the sum of $3,950 and that a conveyance of certain real estate executed by plaintiff to one William H. Esch, and by the latter to appellant, be set aside as fraudulent and void. Judgment was rendered accordingly, from which, after appellant's motion for a new trial was overruled, this appeal.
Appellee contends that appellant having failed to demur to the amended cross-complaint has waived all questions with reference thereto, while appellant contends that the original 1-3. cross-complaint was only amended as to the relief sought, and that such an amendment does not necessitate a refiling thereof, citing to sustain her contention,Indianapolis, etc., Transit Co. v. Derry (1904),
There is another reason why appellee was entitled to have the conveyance set aside. In determining the amount of alimony to which she was entitled in the event of divorce, it was the 4. right and duty of the court to take into consideration the value of Esch's estate. Bush v. Bush (1871),
The judgment of the court is in proper form and follows the finding, and, therefore, the motion to modify it was 5. properly overruled. Brown v. Conlin (1920),
There was evidence from which the court could and *252
did find that appellee was induced to sign the deed relied upon by appellant as conveying the real estate involved from 6. appellee and her husband to the husband's brother, from whom appellant, his mother, acquired title, upon the express promise by her husband that the deed should not be delivered, and on condition that it should later be destroyed; that later, appellee then being in possession of the property, the husband turned over the deed to his brother without her consent and contrary to his promise, that the only way that the husband's brother had any possession of the deed was by being sent after it to another office from which he brought it to the husband who put it in his safe. There was no denial of the last testimony. This did not constitute a delivery. Berry v.Anderson (1864),
There is some question as to whether appellant paid any consideration for the real estate involved. The plaintiff testified that his brother paid him nothing at the time of 7. the deed to him, and that after his brother conveyed the property to his mother, about a year afterward, she sent him $2,000, and that all that was paid him was $3,000. He did not say that the $2,000 was any part of the consideration for the real estate. There was evidence that the property was worth from $8,000 to $12,000, with a mortgage thereon for $3,500. The consideration in the deed to the brother was $10,000 and the plaintiff testified that it was a $10,000 property. These facts, together with the fact that both the brother and appellant, the mother, were witnesses at the trial and neither of them testified as to any consideration paid by them for the property, must have impressed the court that the transactions *253 were for the purpose of secreting the property rather than for legitimate conveyance thereof.
It appears by the husband's affidavit, filed in answer to an application for suit money, that, at the time this suit was commenced, aside from this real estate, he did not have sufficient property to pay his debts. This is certainly some evidence that he had accomplished the purpose of disposing of his property as charged in the cross-complaint.
There was no error in overruling appellant's motion for a new trial.
Judgment affirmed.