Beavans v. Groff
| Decision Date | 15 January 1937 |
| Docket Number | 26819. |
| Citation | 5 N.E.2d 514,211 Ind. 85 |
| Parties | BEAVANS et al. v. GROFF. |
| Court | Indiana Supreme Court |
Appeal from Wells Circuit Court; Dan M. Link, Special Judge.
Shadle & Andrews, of Marion, Simmons & Simmons, of Bluffton, and Gemmill, Browne & Campbell, of Marion, for appellants.
E F. Ferree, of Marion, Bowers, Feightner & Bowers, of Huntington, and Eichhorn, Gordon & Edris, of Bluffton for appellee.
Appellee brought this action against appellants seeking to subject certain real estate located in Wells and Blackford counties held in the name of Mira Beaveans, the wife of Lawrence L. Beavans, and Silbert H. Pribble, the husband of Nora E. Pribble, to the payment of a judgment in favor of appellee against Lawrence L. Beavans and Nora E. Pribble, upon the theory that it was conveyed by the latter parties in fraud of appellee, a creditor.
On May 10, 1929, appellee procured a judgment in the sum of $5,613.33, upon a promissory note, against Lawrence L. Beavans and Nora E. Pribble and others, which judgment is unsatisfied, and there is no property in the names or possession of any of the judgment defendants subject to execution. Prior to the date of the execution of the note, which was the basis of the judgment, Lawrence L. Beavans and Nora E. Pribble owned certain real estate located in Huntington, Blackford, and Wells counties. On August 8, 1929, appellee brought an action against all of the appellants in the Huntington circuit court, alleging that on July 19, 1928, with the intent to cheat, hinder, and delay their creditors, and avoid the payment of appellee's judgment, appellants Lawrence L. Beavans and Mira Beavans, his wife, and Nora E. Pribble and Silbert H. Pribble, her husband, made and executed deeds to a trustee for all of their real estate in Huntington county, and caused said trustee to reconvey said real estate by quitclaim deeds to Mira Beavans and Silbert H. Pribble; that the deeds were made, received, and accepted by the grantees without any consideration whatsoever, and with full knowledge of their fraudulent character. There was prayer for a decree that the real estate in Huntington county be subjected to the payment of appellee's judgment. Upon the same day, the action in which this appeal is taken was filed in the Wells circuit court, seeking to have the real estate in Wells county subjected to the payment of appellee's judgment, and later, by amendment to the complaint, the lands located in Blackford county were included in this action. The action in the Huntington circuit court was tried; there was a judgment for appellee declaring the deeds executed for the real estate in Huntington county fraudulent and void against appellee, and ordering the real estate sold as lands are sold on execution. The judgment is still in force, and it was found in the instant case that the real estate affected was worth $2,800 on July 19, 1928, on August 8, 1929, it was worth $1,800, and at the time of the decision of the instant case it was worth $1,500; that the amount due appellee on his judgment at the time of the trial in the instant case was $7,429.55. It was found that the deeds conveying the lands in Huntington county described the real estate in that county only; that the real estate located in the other two counties was conveyed in like manner; and that all of the deeds were executed and delivered at the same time and place in one and the same transaction. There was judgment for appellee, subjecting the lands in Wells and Blackford counties to the payment of his judgment.
The question presented by this appeal is clearly indicated by the following statement in appellants' brief:
'Appellants agree that the judgment in the Huntington County suit is a former adjudication of the matters in issue in this suit.
'The difference between appellee and appellants is as the effect of said adjudication.
'Appellants' view of the effect of said adjudication is twofold, viz.--(1) that, since appellee attempted to split his 'cause of action' in the Huntington County suit and sued for only a part of the relief demandable therein, the judgment in that suit operates as a bar to the prosecution of this suit to obtain the residue or other parts of such relief; and (2) since the appellee failed in the Huntington County suit to plead, put in issue and litigate the validity of all of the deeds in controversy; and since all of said matters were not, but 'might have been,' pleaded, put in issue and litigated therein, the judgment in that suit is equally as conclusive against the appellee as though all of said matters in controversy had been pleaded, put in issue and litigated in said suit; for either of which reasons the judgment in said Huntington County suit is a bar to the prosecution of this suit.'
Appellants contend that, although the action is in form of equitable cognizance, it arises out of a tort; that the 'cause of action' was the alleged fraudulent execution and delivery of the deeds; that 'it was the fraud, the tort, the wrong complained of, but for which there would have been no 'cause of action' to plead and litigate'; that the policy of the law forbids the bringing of two actions for injury arising out of the same transaction; and that appellee was required to seek all of the relief to which he was entitled in one action.
Appellants rely on the case of ...
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