55 Ind. 433 | Ind. | 1876
This action is brought by John E. Corwin, administrator of the estate of Allen Makepeace, deceased, against Eliza M. Stilwell, administratrix de bonis non of the estate of Jacob G-. Stilwell, deceased, and Winnifred C. Stilwell, administratrix of the estate of Thomas R. Stilwell, deceased. The complaint contains two para-graphs. The first is founded on the following writing, alleged to have been executed by Jacob G-. Stilwell and Thomas R. Stilwell, viz.:
' “ Received of Allen Makepeace, for safe-keeping, fourteen thousand five hundred dollars, in seven and three-tenths United States bonds; said bonds to be returned to said Makepeace, at any time, called for. Interest on said bonds due August 15th and February 15th. Anderson, Indiana, December 28th, 1865.
(Signed) “J. G. & T. R. Stilwell.”
The second paragraph of the complaint is a common count, upon an alleged indebtedness for money had and received.
The first paragraph of answer pleaded by the defendants, to the first paragraph of the complaint, is as follows:
“ That they admit the execution of the written instrument which is the foundation of said paragraph, and they say it was executed under the following circumstances, and as a part of the following contract, and not otherwise, to wit: On the 28th day of December, 1865, the said defendants owned and operated the Citizens Bank, which was a bank of deposit, and one^of general banking business, at that time, and had been for ten years prior thereto, at Anderson, Indiana; that the officers of said bank were Jacob G. Stilwell, who was president thereof, and Thomas R. Stilwell, who was cashier of the same. That prior to
The second paragraph of the answer is not substantially different from the first.
The fourth paragraph avers that the cause of action set out in the first and second paragraphs of the complaint are one and the same, and then alleges the same facts that are set up in the first and second paragraphs, only in a slightly different form.
To each of these paragraphs of answer a demurrer was filed, .alleging, as ground, the insufficiency of the facts therein stated, to constitute a defence. These demurrers were sustained, and exceptions reserved. Issues of fact were formed upon other paragraphs of answer, trial, verdict, and other proceedings had, which resulted in a judgment against the appellants. These proceedings need not be more particularly stated, as the only questions discussed by the appellants in their brief arise upon sustaining the demurrers to the first, second and fourth paragraphs of the answer.
It is insisted by the appellants that the agreement, set out in the first paragraph of the complaint, was made for the purpose of avoiding the payment of taxes for the year 1866, on money on deposit in the Citizens Bank, as alleged in the first paragraph of their answer, and, therefore, that it is fraudulent and void; and, also, that the agreement, for the same reasons, is void, as being against public policy.
The allegations in the first paragraph of answer amount to no more than that Makepeace fraudulently refused to list his money, on deposit in the Citizens Bank, for the year 1866, and thereby fraudulently avoided paying the tax thereon for that year. These facts constitute no answer to the obligation against the Stilwells to deliver United States bonds to Makepeace, according to the terms of the written instrument set out in the complaint, even though they assisted him in the fraud, as alleged.
As the second and fourth paragraphs of the answer are the same, in effect, as the first, they need not be separately examined.
The judgment is affirmed, -with costs.