Dinius v. Lahr

• Decision Date: 22 June 1905
• Docket Number: No. 5,618.,5,618.
• Citation: 74 N.E. 1033,36 Ind.App. 425
• Parties: DINIUS et ux. v. LAHR.
• Court: Indiana Appellate Court

36 Ind.App. 425

74 N.E. 1033

DINIUS et ux.

v.LAHR.

No. 5,618.¹

Appellate Court of Indiana, Division No. 1.

June 22, 1905.

Appeal from Circuit Court, Huntington County; James C. Branyan, Judge.

Action by Hohn C. Lahr against Peter E. Dinius and wife. From a judgment for plaintiff, defendants appeal. Transferred from the Supreme Court under Act March 12, 1901, p. 565, c. 247. Reversed.T. G. Smith, for appellants. S. M. Sayler, for appellee.

MYERS, P. J.

The appellee in the court below began this action against appellants to set aside as fraudulent a certain mortgage for $3,000, executed June 3, 1898, by appellant Peter E. Dinius to his wife and co-appellant, Elizabeth Dinius. The cause was put at issue, tried by the court, special findings of fact found, conclusions of law stated on the findings, and judgment in accordance with the findings and conclusions.

We will not take space to state the facts appearing from the pleadings, for to do so will answer no purpose, as under the rules of the supreme and this court but one question is presented, namely, that the court erred in its conclusions of law. Chicago, etc., Co. v. Walton (Ind. Sup.) 72 N. E. 646;Perry, etc., Co. v. Wilson, 160 Ind. 435, 67 N. E. 183;Schreiber v. Worm (Ind. Sup.) 72 N. E. 852. For the purpose of the decision of the dispute now before this court it will be well to observe in the outset that the special findings are supposed to exhibit all the facts in the case (National State Bank v. Sanford, etc., Co., 157 Ind. 10, 60 N. E. 699); and that the facts are fully and correctly found (Phelps v. Smith, 116 Ind. 387, 17 N. E. 602, 19 N. E. 156;Conner v. Andrews Land, etc., Co., 162 Ind. 338, 70 N. E. 376;Blair v. Curry, 150 Ind. 99, 46 N. E. 672, 49 N. E. 908); and that no inferences or intendments are to be drawn from the special findings in aid thereof (Hill v. Swihart, 148 Ind. 319, 47 N. E. 705;Cleveland, etc., Ry. Co. v. Moneyhun, 146 Ind. 147, 44 N. E. 1106, 34 L. R. A. 141;Craig v. Bennett, 146 Ind. 574, 45 N. E. 792). Nor can evidence included in the special findings from which ultimate facts might have been found take the place of such ultimate facts. It is the ultimate facts as found, and not evidentiary facts, which support conclusions of law. Bradway v. Groenendyke, 153 Ind. 508, 55 N. E. 434;Talbott v. English, 156 Ind. 299, 59 N. E. 857;Coffinberry v. McClellan (Ind. Sup.) 73 N. E. 97. In the case at bar it appears from the special findings of fact that on June 10 and 14, 1898, in the Huntington circuit court, judgments were rendered against Wesley F. Dinius and Peter E. Dinius and in favor of appellee, aggregating the sum of $902.07 and $24.10 costs; that at the beginning of this action, November 28, 1899, said judgments were due and wholly unpaid; that said judgments were had upon three several promissory notes executed by said Dinius and Dinius-one on April 29, 1893, for $255, one on September 22, 1893, for $260, and one on May 28, 1897, for $247; that on the date of the execution of said several promissory notes the appellant Peter E. Dinius was the owner of 96 acres of real estate in Huntington county, Ind.; that the same was unincumbered by any judgment, mortgage, or other lien or liens; that appellant Peter E. Dinius derived title to a part of said real estate by inheritance from his father on December 31, 1870, and the balance by purchase May 20, 1874, and April 3, 1882, from persons who had also inherited interests in his father's lands. The findings show that Wesley F. Dinius was on the date of the rendition of said judgment, and continuously ever since has been, and now is, insolvent. There are other findings relative to the transactions between appellants in regard to money which the appellant Elizabeth Dinius received from her father, which are necessary to set forth in detail in view of our present opinion as to the ultimate conclusion we are bound to reach as to the question now under consideration. The court further finds: “(7) That the real estate described in these findings of fact is worth $4,800. (8) That the personal property of the defendant Peter E. Dinius does not exceed six hundred dollars, and, if the mortgage set out in finding 9 herein is held valid, was at the beginning of this suit, and ever since has been, financially insolvent. (9) That the defendant Elizabeth Dinius took and received a mortgage for the sum of $3,000 on the 3d day of June, 1898, after the defendant Peter E. Dinius had been served with summons on the complaints on the notes set out in findings 1 and 2 of this finding of facts, and before the return day for each of said summons as for purchase money of said real estate described herein, and that the same was recorded in Mortgage Record 46 of Huntington county, at page 355 thereof; and that she took the same with full knowledge of the claims of the plaintiff and other creditors, and with full knowledge that the same would render the said Peter E. Dinius financially insolvent, and that she and the said Peter E. Dinius joined in the intent to cheat, hinder, and delay the creditors of said Peter E. Dinius and this plaintiff in particular.” Upon the facts found, the court stated as conclusions of law “that plaintiff ought to recover from defendant Peter E. Dinius, on the judgments sued on, the sum of $1,230.25; that the mortgage of $3,000 dated June 3, 1898, executed and delivered by the defendant Peter E. Dinius to the defendant Elizabeth Dinius, *** is fraudulent as to the plaintiff, and that he is entitled to...