Eller v. Lacy

• Decision Date: 07 April 1894
• Docket Number: 16,693
• Citation: 36 N.E. 1088,137 Ind. 436
• Parties: Eller et al. v. Lacy
• Court: Indiana Supreme Court

36 N.E. 1088

137 Ind. 436

Eller et al. v. Lacy

No. 16,693

Supreme Court of Indiana

April 7, 1894

From the Hamilton Circuit Court.

The judgment is reversed.

J. A Roberts and M. Vestal, for appellants.

G Shirts and I. A. Kilbourne, for appellee.

OPINION

Hackney, J.

The appellee sued to set aside, as fraudulent, the conveyance of certain real estate from the appellant Joseph W. Eller.

The complaint alleges that in the year 1878 the appellee held a judgment against Joseph W. Eller, Jackson, Albert, and William Lacy, for $ 6,750, and proceedings were pending to review said judgment, whereupon the parties to said judgment entered into the following agreement as to said judgment and said proceedings to review:

"This cause settled and compromised on the following terms, to wit The judgment rendered in this court on the 15th day of September, 1877, in favor of the said John Lacy and against the plaintiffs in this suit, for the sum of $ 6,750, is fully paid and satisfied, the receipt whereof is hereby acknowledged by the said John Lacy, and he is to enter satisfaction in full of said judgment, on the judgment docket of said court, the plaintiffs are to pay all costs in this cause, and to pay to said John Lacy the sum of $ 50 each and every year as long as he, the said John Lacy, may live, and in case the above sum should prove insufficient for the reasonable support of defendant in consequence of his long protracted sickness, then, and in that case, the plaintiffs are to pay, in addition to that sum, a sufficient sum to furnish said defendant a reasonable support.

"Signed. "John Lacy.

"William Lacy.

"J. W. Eller.

"Jackson Lacy."

The entry of the satisfaction of said judgment is then alleged, and the complaint further alleges that "the defendants, except the said Eller, herein, have paid plaintiff, each year, the fifty dollars due from them, and each of them, they also paid such sum in addition as has been necessary in case of sickness of plaintiff, as in said agreement provided, but the plaintiff avers that about five years ago the defendant Eller failed and refused, and has ever since failed and refused, to pay his portion of said money or any part thereof; that judgments have been rendered in favor of plaintiff in this court for three installments due from him; that executions have been returned, no property found whereon to levy; * * * that said judgment, interest, and costs, amounted, at the time, to about three hundred dollars."

Then follow allegations of the ownership, by said Eller, of certain real estate, and that the same was fraudulently conveyed by him to his two daughters, a conveyance by one daughter to the other, who is an appellant herein, the insolvency of said Joseph W. Eller, and the fact that he had not, at the time of said conveyance, nor since, property sufficient to pay said debt due and to become due.

A judgment against said Joseph W. Eller for two hundred dollars is sought under said agreement, and it is prayed that said conveyances be set aside "to satisfy the judgment heretofore taken by plaintiff against the defendant J. W. Eller, as well as the judgment taken in this action," etc.

The circuit court overruled the demurrer of the appellants to the complaint, and the correctness of that ruling is attacked here for several reasons.

The first objection to the complaint is that it seeks to recover against one of several joint obligors, and to set aside the conveyance of one of several joint obligors, without an allegation that the others of such obligors have not sufficient means and property from which the plaintiff's claim could be made in whole or in part.

The appellee concedes, expressly, that "it is not clear from the face of the contract, whether it was intended to be $...