Eiler v. Crull

• Citation: 14 N.E. 79,112 Ind. 318
• Decision Date: 18 November 1887
• Docket Number: 12,914
• Parties: Eiler et al. v. Crull
• Court: Supreme Court of Indiana

14 N.E. 79

112 Ind. 318

Eiler et al. v. Crull

No. 12,914

Supreme Court of Indiana

November 18, 1887

From the Henry Circuit Court.

Judgment affirmed, with costs.

S. H Brown and R. Warner, for appellants.

J. H Mellett, E. H. Bundy and C. E. Shiveley, for appellee.

OPINION

Mitchell, J.

This was a suit by Crull against Samuel and Jacob S. Eiler to set aside an alleged fraudulent and voluntary conveyance.

The complaint charged that the plaintiff recovered a judgment against the defendant Samuel Eiler, in December, 1882, and that an execution had been duly issued to the sheriff of the proper county, who, after having made demand for payment, and being unable to find property whereon to levy, returned the execution wholly unsatisfied.

It is charged that, in March, 1882, the execution defendant purchased a certain parcel of real estate, paying therefor one thousand dollars, and that he caused the land so purchased and paid for to be conveyed to his son, Jacob S Eiler, who paid no part of the purchase-price, and who had no knowledge of the conveyance until after it was made.

The complaint charges that the conveyance was so made with the purpose to cheat, hinder and defraud the plaintiff and other creditors of Samuel Eiler, and that the latter at the time the conveyance was so made did not, nor did he at the time suit was commenced, have any other property subject to execution sufficient to pay all his debts.

The appellant contends that the complaint did not state facts sufficient, and that hence the court erred in overruling his demurrer.

It is said that, so far as appears, the defendant Samuel Eiler may have had a sufficient amount of money to pay all his debts at the time he purchased and paid for the property in question, and yet have had no property subject to execution. Hence, it is argued, a debtor who employs his money which is not subject to execution in purchasing real estate, the title to which is taken in a third person, has not thereby committed a legal fraud upon his creditors, although he may have intended to do so. Sections 366, 367, 1 Story Eq. Jurisp., are relied on as sustaining this view.

The result of the doctrine declared in the above sections is, that creditors have no right to complain in case their debtor makes a voluntary conveyance of his property, unless such conveyance was legally injurious to them, by withdrawing a fund from their power which the law had not previously withdrawn. This is substantially the doctrine declared in the recent cases of Taylor v. Duesterberg, 109 Ind. 165, 9 N.E. 907; Faurote v. Carr, 108 Ind. 123, 9 N.E. 350; Burdge v. Bolin, 106 Ind. 175 (55 Am. R. 724, 6 N.E. 140).

In those cases the debtor had no property except such as was legally exempt from execution. The debts could not have been coercively collected, hence the transfers assailed were not legally fraudulent.

The case before us is not within the principles which ruled those cases. Nor is the common law doctrine declared by Story controlling to its full extent under our statute, which enables a...