Stewart v. English

• Decision Date: 29 May 1855
• Citation: 6 Ind. 141
• Parties: Stewart and Others v. English and Others
• Court: Indiana Supreme Court

6 Ind. 141

Stewart and Others v. English and Others

Supreme Court of Indiana

May 29, 1855

ERROR to the Wabash Circuit Court.

The decree is affirmed with costs.

J. K Edgerton and C. Case, for plaintiffs.

W. Z Stuart and D. D. Pratt, for defendants.

Davison J. Stuart, J., having been concerned as counsel, was absent.

OPINION

Davison, J.

Bill in chancery. The object of this suit was to reach certain property alleged to have been transferred by Robert English, with the intent to hinder and delay the plaintiffs from the collection of a judgment at law. The material facts, as they appear by the bill of complaint, answers, exhibits and depositions, are these:

In July, 1849, English bought of the plaintiffs, then merchants in the city of New-York, a stock of goods worth 8,780 dollars, for which he executed to them his promissory note, payable in six months. When this note was given, it was verbally agreed between the parties, that they were to wait on him for payment twelve months. He, also, in that month, gave them another note for 413 dollars, payable within sixty days, at the branch bank at Fort-Wayne. This note he failed to pay. And in January, 1850, about the time the larger note matured, one of the plaintiffs called on English at Lagro, Indiana, his place of residence, for security on their claim. It was then proposed to extend the time of payment of the notes, provided English would give a mortgage on all his real estate. This proposition was accepted; but on application to English's wife, she refused to sign the mortgage, and the arrangement was not carried out. Thereupon the notes were placed in the hands of an attorney. On the 13th of January, 1850, suit was brought on these notes against English in the Wabash Circuit Court. On the 20th of said month, process in the cause was served, and on the 20th of the next March, the plaintiffs recovered a judgment in said Court against him for 9,291 dollars. Between the commencement of the suit and the judgment, Donovan visited English at Lagro, and, at his solicitation, proposed to loan him a sum of money to pay on the plaintiffs' notes, whereby he might be enabled to procure an extension of payment for the residue. About the 1st of February, 1850, they proceeded together to Fort-Wayne, where the plaintiffs' attorney resided, and remained at that place three days, during which English made an effort to obtain an extension of the debt sued on, but having failed to make any such arrangement, they returned to Lagro. After this, in February, 1850, English sold and conveyed to Donovan, real property worth 4,649 dollars, and also sold and delivered to him merchandise valued at 11,472 dollars--making a total of 16,121 dollars; and within the same month English sold and conveyed to the said Roche a tract of land for 1,800 dollars. The terms of the sale to Donovan were 1,500 dollars down, and for the balance he executed his notes, without interest and without security, at twelve, eighteen and twenty-four months. Roche, for the land which he purchased, gave his notes upon a similar credit. These sales were at full value. Prior to the 23d of February, 1850, Donovan removed the merchandise to his place of residence in Pike county, and at that date the several deeds to him and Roche were duly recorded.

At this period, English was largely indebted, was to some extent embarrassed; but his property, at its fair value, was sufficient to pay all his debts. From the evidence, it may be inferred that Donovan and Roche knew that he was indebted; but there is nothing tending to show that they were at all acquainted with the extent of his liabilities. They had knowledge of the plaintiffs' suit; but English had other property, not transferred, more than enough, at its real value, to satisfy any recovery that might be the result of that suit.

The weight of evidence induces the conclusion that English, by these sales, intended to raise means to pay all his debts as speedily as possible. We perceive nothing in the record amounting to proof that either Donovan or Roche knew, believed, or even suspected that English intended to delay, hinder, or defraud the plaintiffs.

English, on the 12th of March, 1850, executed to Pettit, one of the defendants, a deed of trust, whereby he transferred to him for the use of his (English's) creditors, the plaintiffs included, choses in action worth, on their face, 18,000 dollars. The notes given by Donovan and Roche constituted a part of that amount. Also, for the same purpose, he assigned to Pettit certain real and personal property, the value of which is not shown, but which appears to have been disposed of by him before this suit was instituted. In the deed of trust, English designated certain preferred creditors. The plaintiffs were not named in that class, though the deed provides for the payment of their demand. He also reserved the right of securing and preferring creditors at home, for small amounts, at any time within six months from the date of the deed. By this deed, it appears that English was divested of title to all his property, which, it is shown, was sufficient to cover all his indebtedness existing at the time of the transfer to his trustee.

On the 1st of April, 1850, the plaintiffs sued out a writ of fieri facias on their judgment against English, which was levied on certain lands as his property. This levy embraced all the lands conveyed by him to Donovan. They were afterwards sold by the sheriff to the plaintiffs for 397 dollars, and, on payment of that sum, they received a deed pursuant to the sale. The sheriff, on the 13th of August, 1850, made return of said writ, to the effect that he had applied the 397 dollars in payment of a prior execution in favor of Lyman, Seers & Co.; that the plaintiffs' execution remained wholly unsatisfied, and, as to it, he returned the same nulla bona.

When this suit was brought, English was a non-resident. He was notified by publication, and having failed to appear, was defaulted. The other defendants, Donovan, Roche and Pettit, answered the bill.

The bill prays that the respective deeds executed to Donovan, Roche and Pettit be declared fraudulent and void, as to the plaintiffs' judgment; that the title to the real estate sold and conveyed to them by the sheriff be confirmed; that the payment of said judgment be decreed; and that the defendants be held to account for all the real and personal property, money and choses in action by them, or either of them, received from English; that a receiver be appointed, &c.; that an injunction be awarded &c.; and for general relief.

Upon a final hearing, the Circuit Court dismissed the bill.

It is a settled rule of law that fraud is never presumed; it must be clearly proved by the party making the charge, for the presumption of law is always against bad faith....