3 Ind. 129 | Ind. | 1851
Ejectment by Doe on the demise of Fletcher Tevis, jun., for nineteen and a half acres of ground, being a part of the north-east quarter of section 19, &c., in Rush county. Andrew Colliver and Joel Tevis were admitted defendants. They entered into the usual consent-rule, and put in the plea of not guilty. The cause was tried by the Court, without a jury, and there were a finding and a judgment for the plaintiff.
It was shown in evidence that the legal paper title to the land in question, was in Andrew Colliver; that it was conveyed to him on the 3d day of May, 1847, by George
Upon the trial in the Circuit Court, the conveyance to Colliver was decided to be fraudulent, and the land was held to have passed by the sheriff’s sale to said Fletcher Tevis, jun.
The first question made in this Court, is whether the proof shows the conveyance of the land to Colliver to have been fraudulent. We shall not incorporate the evidence upon this point in our opinion. The question was for the jury, or the.Court discharging the function of the jury; and such is the evidence, that, had the finding been
Next, the position is taken that, admitting the conveyance to have been fraudulent, this is not a case within the provisions of the statute of frauds in reference to the sale of lands on execution.
Our statute (R. S. p.453, s. 1,) enacts, among other things, that “ lands, tenements, and hereditaments, fraudulently conveyed with intent to defeat, delay, or defraud creditors,” and such as are “ holden by any one in trust for or to the use of another,” shall be liable to be sold on execution, &c. Now, if Joel Tevis had fully paid the consideration for this land to Hewitt, and was entitled to a deed, but had the same conveyed for his use to Colliver, Colliver held the land simply in trust for said Joel, and it was subject to the execution in this case. See Bogart v. Perry, 1 John. Ch. R. 52. And if said land was conveyed to Colliver, by the procurement of said Joel, “ with intent to defraud” said John D. Tevis out of his judgment, and said Colliver was a party to the fraud, then, without regard to the question of the payment of the consideration, the land was subject to the execution. These questions were for the jury, as to the facts.
It is next objected that the land was sold without appraisement. John D. Tevis became bail on the judgment in question, in 1840. That, therefore, is the date of the contract out of which the liability of Joel and Fletcher Tevis to him arose; and we think it right that he should have the advantage of the law of that date. That law required no appraisement.
On the trial, Colliver, with a view to show that he had paid something to Joel Tevis for the land conveyed, proved that he had, as replevin-bail, been compelled to pay a judgment for said Tevis. The plaintiff, in rebutting, proved, by A. W. Hubbard, that soon after Colliver paid said judgment, he employed said Hubbard to sue a constable for some neglect in regard to its collection, and that
This evidence was objected to on two grounds: 1. Because the proceedings in said suit against the constable were not given in evidence; and, 2. That if the constable and sureties did pay back the money to Colliver, it was his gain, and Tevis had no right to the benefit of it.
As to the first objection, it is a sufficient answer to say that it does not appear that any suit was instituted against the constable; and, further, if there was, the money was not collected by means of a judgment in the suit, but was paid on a compromise, perhaps a verbal one, independent of the suit, and there could be no objection to proving such a compromise by parol and the amount paid upon it.
As to whether Tevis had a right to the benefit of that payment, or not, there is nothing on the record showing us what the neglect of the constable, on account of which he paid the money, was. If it was such as .gave Tevis a right of action against him, and Colliver having paid the judgment, availed himself, by the consent of Tevis, or otherwise, of that right, Tevis should have the benefit of the amount collected. It may have been such a case.
The judgment is affirmed with costs.