Copeland v. Summers

• Citation: 37 N.E. 971,138 Ind. 219
• Decision Date: 19 June 1894
• Docket Number: 16,399
• Parties: Copeland, Executor, et al. v. Summers et al
• Court: Supreme Court of Indiana

37 N.E. 971

138 Ind. 219

Copeland, Executor, et al. v. Summers et al

16,399

Supreme Court of Indiana

June 19, 1894

Original Opinion of November 27, 1893, Reported at: 138 Ind 219.

OPINION

Coffey, J.

A petition for a rehearing is filed in this case, supported by an earnest and able brief, in which it is contended that this court erred in holding there was no question of fraudulent conveyance involved.

After another careful examination of the pleadings, we still entertain the belief upon this subject expressed in the opinion heretofore handed down. It is true that in the first paragraph of the answer of Milton L. Copeland as executor, it is shown that the testator, after the execution of the contracts in suit, did not have sufficient property left to pay his debts, and that such debts still remained unpaid, but the answer proceeds upon the distinct and definite theory that such contracts and the will of the testator constituted a testamentary disposition of the property named in the contracts, and that the title to such property did not, therefore, vest in the appellees until the death of the testator, and was, for that reason, part of the assets in the hands of the executor, subject to be used in the payment of such debts. In holding that the title to the property mentioned in the contracts vested in those for whose benefit the contracts were made, at the time of their execution, we necessarily held that this answer was bad upon the theory upon which it proceeds. It is well settled that every pleading must proceed upon some single, definite theory, and if bad upon the theory on which it proceeds, it can not be sustained upon some other theory. Platter v. City of Seymour, 86 Ind. 323; Mescall v Tully, 91 Ind. 96; Western Union Tel. Co. v. Young, 93 Ind. 118; Chicago, etc., R. R. Co. v. Bills, 104 Ind. 13, 3 N.E. 611; First Nat'l Bank, etc., v. Root, 107 Ind. 224, 8 N.E. 105; Pearson v. Pearson, 125 Ind. 341, 25 N.E. 342.

As there is no pleading in the record, drawn upon the theory that the property sought to be recovered by the appellees was transferred to them in fraud of the rights of creditors, there is no question of this character involved in the case.

It is also claimed by the appellant Milton L. Copeland, as executor, that this court erred in failing to pass upon the sufficiency of the second paragraph of his answer as an estoppel.

This paragraph avers, substantially, that the...