76 N.E.2d 856 | Ind. Ct. App. | 1948
Lead Opinion
This appeal raises the question of whether a trustee in bankruptcy is entitled to the interest of a bankrupt husband in real estate owned as tenants by entireties. (Hereinafter when the term "appellee" is used it will refer to appellee Dexter. The appellants will be referred to individually as husband and wife.)
The facts out of which this action arose, as shown by the record, may be summarized as follows: Appellants were married in 1923. At the time of their marriage the wife had $1,000 of her own money. She applied this money to the purchase of a home in Illinois. Title to this property was taken in the name of husband and wife as joint tenants. There was a mortgage on the property. About a year and a half later this property was sold at a profit of about $1,000. At about the time of this sale the husband entered the contracting business building homes, etc. The proceeds from the sale of the first property were invested in another piece of real estate, title in both as joint tenants. The husband built a home on it. There was a mortgage on this property. Sometime prior to 1930 this property was sold and the proceeds from this sale invested in property in Calumet City, Illinois, title again in both as joint tenants, the husband, in 1930 or 1931, building a home on this real estate in which appellants lived for *190 about ten or eleven years. While the husband was engaged in building the houses the earnings of the wife supported the family.
In 1932 the husband and another not involved in this action entered into a contract with the United States Government for the extension and remodeling of the U.S. Post Office in Joliet, Illinois. On or about July 15, 1932, The Fidelity Deposit Company of Maryland as surety executed its contract bond in the sum of $50,000, conditioned that the husband and his associate would faithfully perform said contract. The application for the bond was signed by the husband and carried the usual indemnifying provision. In August of 1933 the husband and his associate abandoned their contract and the Bonding Company completed the work.
About 1926 the wife had to go to work because the earnings from the business of the husband were not sufficient to support them. From 1932 to 1937 the husband could not find any work because of the depression. The wife worked regularly and earned from $125 to $140 per month. Out of her earnings she made the payments on the mortgage on their home, paid the taxes, grocery, utility and other household expenses. It is undisputed that if it had not been for her contributions the home in Calumet City would have been lost.
About 1940, the record discloses the property in Calumet City was sold. There was a mortgage of between $5,500 and $6,000 on this property at the time of the sale. The sale price was $7,500. With the net proceeds from this sale the wife purchased an apartment in Hammond, Indiana. Title was taken in the name of husband and wife as tenants by entireties. There was a $6,500 mortgage on this property. During the time they lived in this property the wife made the payments on the mortgage. They kept this property for about *191 one and one-half to two years. It was sold for $12,000. At the time of the sale the mortgage had been reduced to about $6,000. The wife received the net proceeds from this sale. The husband explained this by saying she had made all the payments, etc., and he never had anything to do with her money. In July of 1942, with the proceeds from this sale, she bought the farm in Marshall County which is the subject of this action. Title to this farm is in appellants as tenants by entireties. The farm is subject to a mortgage in excess of $3,000.
Early in 1945, the Fidelity Deposit Company of Maryland brought its action in the United States District Court for the Northern District of Indiana against appellants and others for $27,500 for money and interest thereon expended by it by reason of the failure of the husband to fulfill his contract with the government. The United States District Court made its special finding of facts and found in favor of the wife and that the husband was indebted to the Bonding Company in the sum of $11,036.37 with interest from the 30th day of March, 1936. (From this it may be inferred the debt accrued on said date.) Judgment was entered in favor of the wife and against the husband for $16, 929.78. In August, 1945, the husband filed his voluntary petition in bankruptcy. The appellee was appointed trustee. The judgment in favor of the Fidelity Deposit Company was filed as a claim in said matter.
Thereafter, appellee brought this action asserting he became the owner of right, title and interest of the husband in the farm. Upon proper request the trial court made a special finding of facts and stated its conclusions of law thereon. The only finding which is materially different from the facts as hereinbefore set out is finding No. 4, which is as follows: *192
"That the said defendants, George E. Vonville and Margaret Vonville, each contributed approximately equal sums of the purchase of said farm, said George E. Vonville contributing thereto his own funds in the approximate sum of $1,500.00; that at the time of said purchase and conveyance, the defendant George E. Vonville was indebted to the Fidelity Deposit Company of Maryland, a corporation, in the sum of $11,036.37, with interest thereon at the rate of 6 per cent per annum from the 30th day of March, 1936, which indebtedness was later reduced to judgment as above described; that at the time of said conveyance and continuously ever since, the defendant, George E. Vonville, had no other property subject to execution out of which the claim of the Fidelity and Deposit Company of Maryland, a corporation, could or can be collected."
The trial court's conclusions of law were as follows:
"1. That the law is with the plaintiff and the defendants Aetna Life Insurance Company and against the defendants, George E. Vonville and Margaret Vonville; that the plaintiff is entitled to the partition and sale of the following described real estate in the County of Marshall and State of Indiana: (H.I.), in accordance with the laws of the State of Indiana in such cases made and provided.
"2. That the parties hereto are entitled to participate in the proceeds of such sale, and the proceeds of said sale shall be distributed in the following order and manner:
First: To the payment of the costs of this action and of the sale of said real estate;
Second: $3,215.11 together with interest thereon at the rate of 5 1/2 per cent per annum from August 1, 1945, until paid, plus $250.00 as attorneys' fees to the defendant Aetna Life Insurance Company in full payment and satisfaction of its mortgage on said real estate;
Third: The balance to be divided equally between the plaintiff, Galeman Dexter, as Trustee *193 in Bankruptcy of the Estate of George E. Vonville, and the defendant, Margaret Vonville."
Judgment accordingly.
The errors assigned here and not waived are, that the trial court erred in overruling appellants' demurrer to the complaint, in overruling their motion for judgment on the pleadings, their motion for a new trial, and in each of its conclusions of law. The specifications in the motion for a new trial question the sufficiency of the evidence, the legality of the decision, and error in the admission of certain evidence.
Before the rendition of judgment or the filing of the motion for new trial, and after the court announced its special finding of facts and conclusions of law, appellants separately and 1. severally moved the trial court for a judgment in their favor on the pleadings notwithstanding the findings of the court, for the reason the complaint does not state a cause of action against either of appellants. Appellee contends this was a motion in arrest of judgment which, under our procedure, precludes the consideration of a motion for new trial. By their motion appellants sought a judgment in their favor. Had this motion been sustained the court would have entered a final judgment in their favor and against appellee. But when a motion in arrest is sustained there can be no judgment for either party. Each must pay his own costs. The plaintiff may bring an action again on a sufficient complaint. II Watson's Works Practice, p. 488, § 1912. The filing of a motion for judgment on the pleadings does not preclude the consideration of a subsequently filed motion for a new trial.
We are of the opinion the special findings of fact were *194
sufficient to sustain the conclusions of law. Probst v.Probst (1942),
In our opinion there is but one real question to be determined by this appeal, that is, under the evidence herein, did the interest of the husband in the real estate which is the subject of this action pass to his trustee in bankruptcy? Appellants contend the interest of a bankrupt in real estate held by the entireties does not pass to his trustee in bankruptcy for the benefit of his creditors.
In 6 Am. Jur., p. 599, § 154, it is stated: "No portion of an estate by entireties passes to the trustee in bankruptcy of either of the spouses as an asset of the estate of the bankrupt."
In 8 C.J.S., p. 627, § 175-(b), it is stated:
"Where, under the law of the state, the interest of either a husband or wife in land held by them as tenants by the entirety cannot be sold encumbered, or transferred without the consent of the other, nor be levied on or sold under judicial process against one of them, the interest of a bankrupt in land in which he is a tenant by entirety with his wife does not pass to the trustee in bankruptcy."
In Indiana a bankrupt's estate by entireties does not pass to his trustee for the benefit of creditors. Echelbarger v. First Natl. Bank of Swayzee (1936),
But the appellee contends the interest of a debtor in a tenancy by the entirety which was created while the debtor was indebted and paid for wholly or partly with the funds of the debtor, is subject to execution for the *195
latter's debts. In support of this contention he cites, among others, the following cases: Newlove v. Callaghan (1891),
In Newlove v. Callaghan, supra, the husband gave his note on December 1, 1884. It was protested in January, 1885. In October, 1885, he and his wife purchased the real estate as tenants by entireties. The Supreme Court said: "In the absence of anyshowing to the contrary, the defendant John Callaghan must bepresumed to have paid one-half of the purchase price." The Court then said: "Had the entire estate been placed in the wife's name, there could have been no question but that the same would be regarded as fraudulent under the statute, and it is no less a fraud upon creditors because the title has been taken in the name of the defendants jointly." (Our emphasis.)
In Detroit B.C. W.R. Co. v. Lavell, supra, James Lavell gave the railroad the following conditional promise to pay:
"Roseburg, Michigan, Dec. 9, 1912.
"In consideration of the extension of the Detroit, Bay City Western railroad from Peck, Sanilac County, to Roseburg, Sanilac county, Mich., I hereby agree to pay to the Detroit, Bay City Western Railroad Company, the sum of $160, at Yale State Bank, one-half of this amount payable when first train reaches Roseburg, the remaining one-half one year thereafter. If above-mentioned road is not constructed by December 31, 1916, then this agreement is null and void.
"(Signed) James Lavell."
The railroad was completed and first train run over it July 16, 1916. At the time he gave the note Lavell owned in fee simple a farm worth $8,000. On December *196 12, 1913, Lavell and his wife made a quit claim for this land to an acquaintance for a recited consideration of $1, but admittedly without any consideration. This grantee immediately gave back to Lavell and his wife a quit claim deed purporting to convey the farm to them as tenants by the entireties. Lavell refused to pay the note. Judgment was rendered against him. The Supreme Court held the deeds void under the Michigan statute which renders void conveyance made with intent to hinder, delay or defraud creditors.
In Lemerise v. Robinson, supra, most of the payments on property held by entireties were made after the debt was contracted and it did not appear that the wife contributedanything toward the purchase of the entireties property.
In the case of Probst v. Probst, supra, John Probst, withhis own money, paid the full purchase price for a farm and had it conveyed by the vendors to his son and daughter-in-law as tenants by the entireties. At the time of the purchase he was indebted in a sum exceeding $2,500. Our Supreme Court held this evidenced a secret parol trust for the benefit of John during his life and certain of his children after his death, which was void as against creditors.
We are in accord with the reasoning of these cases. They are based on elemental principles of honesty and justice. In these cases the creditor was harmed by the action of the 3. debtor. A debtor may not defraud his creditors by placing assets which belong to the latter in property by entireties. This is the evil these cases condemn. When he attempts to do so, insofar as his creditors are concerned no estate by entireties is created. Under such conditions a trust is created for the benefit of creditors. In this case there is *197 no evidence to show that appellee was harmed by the transaction herein.
Appellee contends the rule announced in these cases is applicable to this case for two reasons: First he asserts upon the sale of the first Indiana tenancy by the entirety the proceeds thereof became subject to the existing claims of creditors of either the husband or the wife. Citing Fogleman v.Shively (1891),
"Where possession of the personal property of the husband and wife is taken by the husband, he should be presumed to take for a purpose consistent with the wife's interest, and should be regarded as holding the property for her as well as for himself. By agreement with the wife, he may take it as his own, and use it accordingly.
"We have assumed in this case that it is sufficiently shown that the note and bill represent the proceeds of the sale still regarded by the husband and wife as the property of both. We think that the facts, that the owners of this personal property are husband and wife, and that it represents the still undivided proceeds of real estate owned by them as tenants by entireties, do not affect the right of the appellant. The interest of the wife, who is not a party to the proceedings in attachment, is not like the interest of a partner in a debt due to the firm. The note and bill were in the name of the husband and in the possession of the agent. The interest of the wife is definitely shown, being a moiety of the proceeds of the sale of the land. . . .
"We are of the opinion that the interest of the husband might be subjected to the payment of his separate indebtedness under the proceedings in attachment and garnishment." (Our emphasis.)
There is a clear distinction between the last cited case and this one. In that case there was no showing the wife contributed anything to the purchase of the property and there, by direction of the husband and wife the proceeds from the sale were placed in the husband's name. In this case the evidence is uncontradicted that it was the wife's money which went into the first entirety property and when that property was sold she received and retained the proceeds as her own. *199
In the case of Mercer v. Coomler (1904),
"The learned counsel for the appellant, in argument, protests that it is not claimed on behalf of *200 the appellant that the appropriation proceeding by which the land was taken in Grant County, and in which the judgment for damages therefor was awarded, severed the unity of interest of husband and wife in the money realized from the land held by them; and it is urged by counsel that the underlying theory of the appellant's case is that he had an equitable right against the Grant county land of the Coomlers, because his money went into it — because it was purchased in part with money which was equitably his; and that his equity in the land followed the fund derived therefrom into court; that the money in court as a result of the condemnation of a right of way across the Grant County land is but the substitute for the land; and that as the land was purchased by the Coomlers with his money to the extent of $250, he having involuntarily furnished the money to buy the land, his right to be repaid is superior to any right of Susan Coomler."
This is, in effect, the contention of appellee in this case. In that case this court then said:
"The argument of the appellant based upon the theory that the Grant County land was purchased in part with the money of the appellant, and that therefore the interest of both husband and wife to such extent ought to be subject to the execution, cannot prevail, for the reason that the consideration for the Grant County land, as we have sought above to show, was not paid by the appellant, or with his money, but was paid with money owned by John H. Coomler, the title being taken in the names of him and his wife, as agreed between them when the wife joined in the conveyance of the Howard County land."
In the case of Koehring v. Bowman (1924),
"Estates by entireties do not exist as to personal property . . . except when such property is directly derived from real estate held by that title, as crops produced by the cultivation of lands *201 owned by entireties or proceeds arising from the sale of property so held. (Our Emphasis.)
Citing Frost v. Frost (1906), 200 Mo. 474, 98 S.W. 527, 118 Am. St. 689.
In Schwind v. O'Halloran (1940), 346 Mo. 486, the Supreme Court of Missouri held that the proceeds from the sale of property held by the entirety retains its entirety characteristics and such characteristics follow it upon reinvestment.
In the case of Moore v. Von Goosen (1930),
"Plaintiff urges that the (defendants') vendors' interest in the land contract, exchanged for material for the building, was personalty, citing Detroit Trust Co. v. Baker,
"It is also urged that the part of the consideration for the sale of the former entirety property, paid in cash and reinvested in the entirety property sought to be reached, was likewise, the evidence not showing otherwise, owned by defendants equally, that it was personalty, and that the bankrupt's one-half interest, so invested, may be reached. The consideration named in the contracts of sale was payable to the defendants, vendors, as tenants by entireties. There being no evidence on the matter, presumably it was so paid. Whether paid by check, draft, or in money, the record does not disclose. By agreement, arrangement, or contract between them, defendants might hold such funds by entireties. Detroit Security Trust Co. v. Kramer, supra. The mere exchange of one entirety property beyond the reach of creditors for other entirety property beyond the reach of creditors is not a fraud upon them. First State Bank v. Wallace,
In the case of American Wholesale Corporation v. Aronstein, decided by the United States Court of Appeals for the District of Columbia (1926), 10 F.2d 991, the facts were much stronger in favor of the appellants' position than they are in this case. The facts in that case, as set out in the opinion, are as follows:
"In the year 1920 Aron Aronstein purchased and with his own money paid for two separate parcels of real estate, situate within the District of Columbia, one of which was used by him and his family as a residence and retail store; the other was an apartment house which was rented for about $350 a month. The property was conveyed to Aronstein and his wife by deeds of conveyance under which they became tenants by the entireties. It does not appear that Aronstein was insolvent at that time.
"Afterwards, to-wit, in the year 1923, Aronstein became indebted to the appellants, respectively, upon certain promissory notes, which in the year 1924 were reduced to judgment and are yet unpaid. In the year 1923, Aronstein, being then liable upon said notes and being then insolvent, executed and delivered to his wife two several deeds, purporting to convey to her his interest in the real estate above referred to.
"The appellants charge that the aforesaid original conveyance to Aronstein and his wife was a fraud upon his creditors, for the reason that she paid no part of the consideration for the property; also that the conveyance subsequently made by Aronstein to his wife for his interest in the property was without consideration, and was made with intent to hinder, delay, and defraud appellants in the collection of their claims." (Our emphasis.)
In affirming the decree of the District Court dismissing the creditors' bill, the court said:
"At the time when the original conveyance was made to Aronstein and his wife, the former was *204 solvent, and moreover the claims of the appellants against him were not then in existence. Accordingly the appellants cannot attack that conveyance. As to the conveyance subsequently made by Aronstein to his wife, the estate was held by them as tenants by the entireties, and the appellants were not entitled to subject the separate interest of Aronstein to the payment of their claims. His conveyance to his wife accordingly could not hinder or delay them in the collection of their judgments."
In this case it is undisputed that the funds which appellants invested in the real estate here involved were the proceeds of the property in Hammond which was owned by appellants as tenants by the entirety. It is also undisputed that the wife received the money from the sale of the Hammond property and that she retained it as her property until she paid it to the grantor from whom the property herein was purchased. Under these circumstances we cannot see how appellee was harmed by this transaction.
But appellee then contends that tenancies by the entirety are not recognized in Illinois and property held by husband and wife is a joint tenancy and is subject to execution for the debts of either joint tenant to the extent of his interest; that under Illinois law a gift of a one-half interest in a joint tenancy is presumed even though one of the joint tenants furnishes the entire consideration. Citing, Johnson v. Muntz (1936),
It is true that under Illinois law the interest of either the husband or wife in a joint tenancy is subject to levy and sale for the debt of either to the extent of his or her 4. interest. It is there held the execution severs the joint tenancy. But the attaching of a judgment lien upon the interest of a joint tenant or the making of a levy upon such interest does not destroy the joint tenancy. People Trust Savings Bank v. Haas (1928),
It is clear from the record herein that during the time appellants owned the property in Illinois as joint tenants there was no judgment upon which execution could be had against the husband's interest in that real estate. Therefore, the joint tenancy continued until appellants sold the property.
The cases of Walker v. Walker, supra; Spina v. Spina,supra, and Brod v. Brod, supra, sustain appellee's contention that under Illinois law a gift of one-half 5. interest in a joint tenancy is presumed, even though one of the joint tenants furnishes the entire consideration. Each of those cases involved a dispute between the husband and wife over their interest in the property. But this presumption is not conclusive. It is a presumption of fact which may be rebutted.Partridge v. Berliner (1927),
In this case the burden was on the appellee to establish by a fair preponderance of the evidence that one-half of the funds invested in the Marshall County farm belonged to the 6. husband and that at the time it was purchased he did not have sufficient other property to pay his debts. It was also incumbent upon appellee to show he was thereby injured. In our opinion, on the record before us he has not sustained this burden. The evidence as heretofore shown is undisputed that the wife received and kept the proceeds from the sale of the Hammond property until she paid it on the purchase of this farm. The same is true of the proceeds from the sale of the property in Calumet City, Illinois. The whole record leads inescapably to the conclusion that she did not intend to and did not in fact give her husband a half interest in the Illinois property. (Even if this were not true, the husband would only be entitled to one-half of the proceeds from the sale of that property. The equity in the property sold for between $1,500 and $2,000. Hence his interest could not have been more than $1,000.) It is further undisputed that if the wife had not applied her earnings to the payment of taxes, principal and interest on the mortgage, the Calumet City property would have been lost. Certainly if she kept her earnings and did not apply them to the indebtedness on the Calumet City, Illinois, property and that property was taken over by the mortgagor, then if she subsequently placed the money she saved from her earnings in this property *207 as tenants by the entirety, the appellee would have no right to any part of it. Upon the record herein we are unable to see how appellee was in any way injured by this transaction.
Therefore, the judgment is reversed.
Draper, C.J. did not participate in the decision of this case.
NOTE. — Reported in
Dissenting Opinion
DISSENTING OPINION ON PETITION FOR REHEARING The appellees' petition for a rehearing together with their brief in support thereof have convinced me that this appeal should be reheard and the judgment affirmed.
It must be conceded that no portion of an estate by entireties passes to a trustee in bankruptcy of either of the spouses as an asset of the estate of the bankrupt. This refers of course to tenancies of that nature which are legitimately created and not in fraud of the creditors of either spouse. Fraud vitiates any transaction upon which it lays its hands and there is nothing so sacred and inviolable about estates by entireties that they are placed beyond the reach of that principle of law. The appellees' entire case is built around the concept that when a debtor joins with his wife in the purchase of real estate and they take title thereto as tenants by entireties, the interest of the debtor in such estate, to the extent of his financial contribution thereto, is subject to execution by the debtor's creditors, provided he had, at the time of such conveyance, and still has no other property, subject to execution, sufficient to pay his debts. That such concept is sound cannot be doubted when considered in the light of the Supreme Court's decision in Probst v. Probst
(1942),
In the trial of this case the court found the facts specially and stated its conclusions of law thereon and in our decision of January 29, 1948,
In our initial opinion we repudiated this finding only so far as it states that the appellants "each contributed approximately equal sums to the purchase of said farm, said George E. Vonville contributing thereto his own funds in the approximate sum of $1,500." In support of the finding in that particular the appellees call our attention to the following testimony of George E. Vonville:
"Q. Mr. Vonville, when you purchased that farm the money that you used to purchase it was contributed by both you and your wife was is not?
"A. That is right; we sold a piece; sold a piece of property. *212
"Q. And what piece of property was that?
"A. On May Street in Hammond.
"Q. I say you and your wife each contributed 50-50 per cent as a result of the sale of that May Street property?
"A. Yes."
In the court's opinion on the petition for a rehearing this testimony is disposed of with the statement that it was not "substantial evidence with probative value to support the burden which is on the appellee in this case." I think the trial court, considering all the evidence in the case, might justifiably have reached that conclusion but the testimony in question evidently did not so impress him. It is the testimony of a party to the litigation against his own interest, pertinent, direct and to the point, and to characterize it as unsubstantial and of no probative value, it seems to me, involves the process of weighing it against all other facts and circumstances in the case and in the end substituting our estimate of its value for that of the trial court. This the Supreme Court, as late as February 2, 1948, in Wright v. Peabody Coal Co. (1948),
For the reasons stated I cannot join with the majority in characterizing this evidence as unsubstantial and having no probative value and, unless it can be so disposed of, it sustains "Finding No. 4." and the judgment must be affirmed.
NOTE. — Reported in 77 N.E.2d 759.
Addendum
ON PETITION FOR REHEARING The appellee, in his petition for rehearing, says that in our opinion we have transgressed the well-established rule that an appellate tribunal cannot weigh the evidence and thereby substitute its decision for that of the trial court. He bases his contention on the answer the husband made to certain questions propounded by appellee's attorney at the conditional examination of the husband before the Referee in Bankruptcy for the Northern District of Indiana in the matter of the husband's bankruptcy. These questions and answers are as follows:
"Q. Mr. Vonville, when you purchased that farm the money that you used to purchase it was contributed by both you and your wife was it not?
"A. That is right; we sold a piece; sold a piece of property.
"Q. And what piece of property was that?
"A. On May Street in Hammond.
"Q. I say you and your wife each contributed 50-50 per cent as a result of the sale of that May Street property?
"A. Yes."
We did not refer to this evidence in our original opinion because we did not regard it as substantial evidence *208
with probative value to support the burden which is on 7. appellee in this case. By substantial evidence we mean such relevant evidence as a reasonable mind might accept as sufficient to support a conclusion. Consolidated Edison Company
v. National Labor Relations Board (1938),
We have not changed our opinion in reference to these questions and answers for the following reasons: It is a matter of common knowledge that it is an almost universal custom for married 8. persons to claim equal ownership in the property and possessions of each other. The term "my" or "our" is used constantly and interchangeably in reference to children of the marriage. The same is true of an automobile, the legal title to which is in either the husband or the wife. The record of the examination at which the above quoted testimony was given leads inescapably to the conclusion that this was the idea the husband had in mind. Because, when he was questioned in reference to a tractor acquired after the purchase of the farm, to the following question: "Did you buy that from the proceeds of the farm?" he answered: "That is meaning my wife? Yes." Furthermore, in the trial of this cause the husband testified he did not understand the question when it was propounded to him at the hearing before the Referee.
In equitable actions of this nature the rule is that "While a resulting trust may be established by parol evidence: `It is settled by a complete unanimity of decisions that such
9. evidence must be clear, *209 strong, unequivocal, unmistakable, and must establish thefact of the payment by the alleged beneficiary beyond a doubt.'" (Our emphasis.) Bullerdick v. Miller (1926),
We have carefully re-examined the questions presented by this appeal and adhere to our original opinion that appellee did not sustain the burden which was upon him to show he was 10. harmed by this transaction. Furthermore, it is clear from the record that in the long interim intervening between the time the debt to the Bonding Company accrued and the commencement of this action the interests of not only the husband but of the innocent wife have so materially changed that the judgment of the trial court does them irreparable injury. Equity will not sanction such conduct. Penn Mutual Life InsuranceCompany v. Austin (1898),
The petition for rehearing is denied.
DRAPER, C.J. — did not participate in the decision of this case. *210