Bietman v. Hopkins

• Decision Date: 08 January 1887
• Citation: 109 Ind. 177,9 N.E. 720
• Parties: Bietman v. Hopkins and others.
• Court: Indiana Supreme Court

109 Ind. 177

9 N.E. 720

Bietman

v.Hopkins and others.

Supreme Court of Indiana.

January 8, 1887.

Appeal from circuit court, Daviess county.

F. M. Hayne, A. J. Padgett, and John Downey, for appellant. J. W. Burton, for appellees.

Zollars, J.

Appellant, having a judgment against Ezekiel Hopkins, brought this action against him and his wife, Martha, to set aside a conveyance of real estate from him to her, upon the ground that it was fraudulent and void as against creditors, and especially as to appellant. The consideration expressed in the deed is one dollar, and the repayment of money which, prior to the conveyance, the husband, Ezekiel, had received from the wife, Martha. Upon the trial, the wife was allowed to state that, at the time the deed was executed, it was agreed between her and her husband that the land should be conveyed to her in payment of the husband's indebtedness to her, and that, as a further consideration, she agreed to assign and pay a mortgage upon the land, executed by her husband, and in the execution of which she had not joined. Appellant objected, and still objects, to the evidence, upon the ground that it was the detailing of communications between the husband and wife, and hence incompetent under section 497 of the Code.

The evidence was a statement of the negotiations between the husband and wife, prior to, and which resulted in, the conveyance of the land. In our judgment those negotiations were in no sense such communications between husband and wife as are rendered incompetent under the above section of the statute.

Such, clearly, is the result of the holding in the case of Schmied v. Frank, 86 Ind. 250. The holding in that case, upon the point involved here, is applicable and authority in the construction of our present statute. See, also, as bearing upon the question, Mitchell v. Colglazier, 106 Ind. 464; S. C. 7 N. E. Rep. 199; Sedgwick v. Tucker, 90 Ind. 271.

The cause was tried, and judgment rendered, by a special judge. He neglected to sign the record of the final judgment. At a subsequent term of the court appellant made a motion to have the cause redocketed for another trial, because of such failure of the special judge to sign the record at the term at which the judgment was rendered. Over appellant's objection and exception, the special judge overruled that motion, and signed the record. The failure of the special judge to sign the record of the final judgment at the term at which the judgment...