17 Ind. 463 | Ind. | 1861
This was an action by the appellees against the appellants. The complaint alleges, in substance, that the defendants, Valentine and David W. Selmffer, who were
Prayer for judgment against Valentine and David W., for the amount of the judgment recovered in Ohio, with costs and interest, and that the conveyance to Mary E. and Frances be set aside and held for naught, and that the land be sold to satisfy the debt.
The defendants all appeared and answered.
Mary E., in conjunction with her husband, answered, admitting the recovery of the judgment, as alleged, and the want of property in Ohio to satisfy it, and the conveyance of the land by Bowen to her and said Frances, but denying all fraud, and averring that the conveyance was made in good faith and for a valuable consideration. That in regard to
Frances Schaffer, in conjunction with her husband, answered, admitting the recovery of the judgment, &c., as in the answer of Mary E, but denying all fraud, and all knowledge of a previous conveyance by Bowen to Valentine and David TV, and averring that the sale and conveyance to hex’ axxd Mary E. was made in good faith, and for a valuable consideration; and alleging the facts to be, so far as hex-interests are concerned, that in 1851, and soon after her maniage with said David TV, Jacob Browning, her father, advanced to her and her said husband the sum of $2,500, to be used by them until demanded, for which they gave him
A demurrer was sustained to each of these answers, and the defendants excepted. Judgment, that the plaintiffs recover their debt of the defendants Valentine and David W. Sclmffer, and that the conveyance from Bowen to Mary E. and Frances be set aside, as to the creditors of said Va1 entine and David IE, and that the land be sold, &c.
The only question presented by the record is, whether the answers of Mary E. and Frances are sufficient.
We are of opinion that the answers were good, and that the demurrers thereto should have been overruled.
The money received by the husband of Mary E. Bchceffer was not received by virtue of his marital rights, as his own, but as hers, and for her benefit, and he became her debtor for the amount of it, unless he was entitled to receive the money as his own in virtue of their marriage. Whether, in case the husband was entitled to the money by virtue of the marriage, the receipt of it by him, not in Ms own right, but in hers, and for her benefit, made the money his own, leaving no indebtedness from him to her, and no right in her to have the money refunded, is a question similar to one upon wMch this Court was divided in opinion, in the case of Miller v. Blackburn, 14 Ind. 62. This question need not be decided in the present case. It is alleged in the
The same may be said in reference to the answer of Frances. David W., the husband of Frances, owed Browning $1,500. Browning was the father of Frances, and he was willing to receive the land and have it conveyed to his daughter, as an advancement to her, for the $1,500 debt. Here is a sufficient consideration, and the transaction, in the absence of fraud, which is demed, is valid.
But it is insisted that the partners could not apply the partnership effects to the payment of the debts of the individual members of the firm, until the partnerslfip debts were paid. It is a general rule, that where a partnership is dissolved by the death or bankruptcy of one of its members, the partnership effects must be first applied to the payment of partnership debts, before creditors of the individual members of the firm can demand payment out of such
We come now to the question whether the previous conveyance of the land by Boioen, to Valentine and David W. Schaffer, vested the title in them, so as to render the subsequent conveyance to Mary E. and Frances inoperative and void. The surrender of the deed by Valentine and David IN, to Boioen, did not revest the title in the latter. This proposition is too clear to require a reference to the authorities. But the title of Mary E. and Frances is none the worse in consequence of such surrender and attempted reinvestment of the title. Hie deed from Bowen to Valentnie and David IN was not recorded. If recorded, that fact should have been shown, and can not be presumed. Magee v. Sanderson, 10 Ind. 261.
It is alleged in the answers that neither Mary E., Frances, or Broioning, had any notice of such' conveyance. Mary E. and Frances must be regarded as innocent purchasers,having no notice of the previous conveyance. Our statute on the subject of registering conveyances, provides that “every conveyance or mortgage of lands, or of any interest therein, and every lease for more than three years, shall be recorded in the recorder’s office of the county where such lands shall be situated; and every such conveyance or lease not so recorded within ninety days from the execution thereof, shall be fraudulent and void, as against any subsequent purchaser or mortgagee, in good faith, and for a valuable consideration.” 1 R. S. 1852, § 16, p. 234.
Under this statute, it would seem to be wholly immaterial whether the subsequent conveyance was made before, or after, the expiration of the ninety days limited for the recording of the first; nor is it material, so far as the prior purchaser is
Per Curiam. — The judgment that the plaintiffs recover their debt of the defendant’s, Valentine and David IF. Schaeffer, is right, and need not be disturbed. But that portion of the judgment setting aside, and holding for naught, the conveyance from Bowen to Mary E. and Frances Schaeffer, and ordering the land thus conveyed to be sold for the payment of the debt, is reversed, with costs. Cause remanded, &c.