McConnell v. Citizens' State Bank of Petersburg

• Decision Date: 12 May 1891
• Citation: 27 N.E. 616,130 Ind. 127
• Parties: McConnell et al. v. Citizens' State Bank of Petersburg.
• Court: Indiana Supreme Court

130 Ind. 127

27 N.E. 616

McConnell et al.

v.Citizens' State Bank of Petersburg.¹

Supreme Court of Indiana.

May 12, 1891.

Appeal from circuit court, Gibson county; O. M. Welborn, Judge.

L. C. Embree, for appellants. J. H. Miller and F. B. Posey, for appellee.

McBride, J.

This was a suit by a creditor to set aside as fraudulent a conveyance of land by his debtor. On the 19th day of January, 1889, James H. McConnell and Elisha E. Bell executed to appellee their note for $3,000 borrowed money. At that time McConnell owned the land in controversy, with other lands. On the 31st day of January, 1889, he, with his wife, Lotta McConnell, conveyed the land in controversy to the appellants, who on the same day conveyed the undivided one-half of the same to said Lotta for the term of her natural life. Appellant William T. McConnell is a son of said James H., and appellee claims that the conveyance to him and his wife by James H. and Lotta was voluntary and without consideration, and left the debtor without sufficient property remaining for the payment of his debt. The appellants present and argue several propositions. The conclusion we have reached, however, after a careful examination of the evidence, renders it unnecessary for us to examine or pass upon more than two of these questions. The allegations of the paragraph of the complaint upon which the finding is based are sufficient. The facts, as developed by the evidence, are substantially as follows, in so far as they bear on the question of consideration for said conveyance: July 16, 1861, the debtor, James H. McConnell, was a widower, with two children, both infants. One was the appellant William T., and the other was a daughter, named Isadora. He owned a tract of land in Gibson county, known in this litigation as the “Barton Township Farm.” This farm he conveyed to said children on that day. Afterwards the daughter died intestate, leaving as her sole heirs her father and brother. February 26, 1883, the appellant, having come of full age, conveyed the land to his father. He testifies that this was done because he had become dissatisfied with the Barton township land, and wanted instead the land now in controversy, which at that time was an undivided interest in what was known as the “Hargrove Farm,” and that it was then agreed between him and his father that he should deed the Barton farm back to the father, who should in exchange therefor convey to him the Hargrove farm as soon as he had cleared it of a mortgage then on it for purchase money, and that, if it was not cleared of said mortgage, the Barton township land was to be reconveyed to him. He further testifies that at the time he executed said deed to his father the father gave him a note for $3,000, due one day after date, with 8 per cent. interest; but that by their agreement the note was to be fully paid by the conveyance of land under said agreement, and not in money. This note, he testifies, was destroyed by a fire which destroyed his residence and all his papers, and was never renewed. He further testifies that the deed of January 31, 1889, was made in execution of the agreement thus existing between him and his father, and that, instead of being without consideration, the father was compensated by the previous conveyance of the Barton township land. In all this he is fully corroborated by his father and his step-mother, Lotta McConnell. They also all testify to the following additional facts: That on the day of the making of said deeds,-January 31, 1889,-said James H. McConnell, being about to borrow of one John Sipp $4,250, wished to execute to him a mortgage on the Barton township land to secure it, but that his wife refused to join in the mortgage until it was agreed that said deeds should be made, whereby she was to receive and did receive a life-estate in the undivided one-half of the Hargrove farm, while the fee to the whole was conveyed to appellants. No witnesses were called to contradict these witnesses, nor was any testimony of any kind offered tending to contradict them. Appellee's counsel say, however, the court evidently found that the Barton township land had been deeded by the father to the son when he was a minor, and without any consideration, and that, when the son became of age, he deeded the land back to the father without any consideration; “and we feel very confident the court, under the evidence of the son, William T. McConnell, was justified in coming to that conclusion.” Counsel, while admitting that William T. testified to the foregoing facts, cite several circumstances, also disclosed by his testimony, which they argue are inconsistent with the claim that the deed was executed upon the valuable consideration claimed, and insist that by reason of these inconsistencies and discrepancies the court was fully warranted in reaching the conclusion that the deed was without consideration and fraudulent.

It has long been the unvarying rule of this court not to disturb the finding of a court or the verdict of a jury where there is evidence tending to support it on all material questions involved. This has been so many times decided that it is unnecessary to cite authority. Where there is no evidence to support a finding or a verdict on any material point it has also been the unvarying practice of this court to set such finding or verdict aside. City of Warsaw v. Dunlap, 112 Ind. 576, 11 N. E. Rep. 623, and 14 N. E. Rep. 568; Hutchinson v. Trauerman, 112 Ind. 21, 13 N. E. Rep. 21; Roby v. Pipher, 109 Ind. 345, 9 N. E. Rep. 604; Moellering v. Kayser, 110 Ind. 533, 11 N. E. Rep. 604; Kitch v. Schoenell, 80 Ind. 74;Stough v. Smith, 50 Ind. 250;Bradford v. Bradford, 59 Ind. 434; Railroad Co. v. Bowen, 49 Ind. 154. In this...