Eve v. Louis

• Decision Date: 24 November 1883
• Docket Number: 8168
• Citation: 91 Ind. 457
• Parties: Eve v. Louis et al
• Court: Indiana Supreme Court

91 Ind. 457

Eve v. Louis et al

No. 8168

Supreme Court of Indiana

November 24, 1883

From the Floyd Circuit Court.

The judgment is reversed, at the costs of the appellees, and the cause is remanded, with instructions to sustain to the cross complaint of the defendant Julius Louis the demurrers to the plaintiff's answer.

J. H Stotsenburg and D. C. Anthony, for appellant.

A Dowling, D. W. Lafollette, W. W. Tuley, --- Howard and --- Reed, for appellees.

Black C. Howk, J., having been of counsel, took no part in the decision of this cause.

OPINION

Black C.

This action was commenced in the Clark Circuit Court. It was brought by the appellant, John G. Eve, against the appellees, Julius Louis and Heber B. Essington, upon four promissory notes, and to foreclose a mortgage on certain real estate in Clark county, given to secure said notes. The notes and mortgage were executed on the 25th of May, 1867, by the appellee Essington to one Libbeas Frisbie, who assigned them, without recourse on him, to one Tryphenia Gresham, by whom, on the 24th of January, 1870, they were assigned to her daughter, Mary D. Gresham, who assigned them to the appellant. The appellee Louis was made a defendant, because, as stated in the complaint, he claimed to have some interest in the mortgaged property, which appellant alleged was inferior in equity and junior in time to his claim.

The subsequent proceedings, which will be noticed by us, were had in the Floyd Circuit Court, to which the venue was changed.

The appellee Essington answered by a general denial. He also filed paragraphs of special defence, to which appellant replied. These issues need not be further mentioned.

The appellee Julius Louis answered by a general denial, and filed a cross complaint. In his cross complaint he alleged that in the year 1860, and for many years before, one Robert H. Gresham, was the owner in fee simple and in the possession of the mortgaged property; that he afterward became involved in debt and embarrassed in his circumstances, and divers judgments were rendered against him by the courts of said Clark county for divers large sums of money, and divers executions were thereon issued, under and by virtue of which all his property subject to execution was levied upon, sold and conveyed by the sheriff of said county; that among his other property said real estate was, on the 31st of May, 1862, sold and conveyed, according to law, in fee simple, by said sheriff, to one Libbeas Frisbie; that at or about the time of said sheriff's sale and conveyance to said Frisbie, it was agreed and understood by and between said Frisbie and said Robert, that the latter should have the right to redeem said real estate from said sheriff's sale by paying to said Frisbie the amount of said Robert's indebtedness to him and interest thereon and all costs, and that upon such payment said Frisbie would reconvey said real estate to said Robert, or to such person or persons as he might appoint; that under and in accordance with said agreement, said Robert, on or before the 25th of May, 1867, had fully paid said Frisbie said sum of money and all interest and costs, and was entitled to a reconveyance of said real estate by said Frisbie, as aforesaid; that on and before said last mentioned date, said Robert was indebted to the appellee Julius Louis and divers other persons in divers large sums of money, on which judgments had been rendered by the courts of said Clark county, which were then in full force, which would have at once become valid liens upon said real estate, if the same had been then conveyed to said Robert, and which he was either utterly unable or unwilling to pay off and satisfy; that on and before said last named day, said Essington was a partner of said Robert in the business of real estate agents, and was fully cognizant of his said agreement with said Frisbie for the reconveyance of said real estate, and also of said Robert's financial condition; that Essington was possessed of but little means, had no use for said real estate and no desire to purchase it, and, in fact, did not purchase it from said Frisbie, or from any one else; that said Robert was then very desirous of saving and securing to himself and his family said real estate from his said creditors, and, at his urgent solicitation and request, said Essington finally agreed that a deed might be made by said Frisbie and his wife, conveying said real estate to him, said Essington, for a certain specified consideration, that he would execute his notes for said consideration, to be secured by mortgage on said real estate, and that said notes should then and there be assigned to Tryphenia Gresham, wife of said Robert, and be held by her until such time as he or she could safely hold said real estate as against his said creditors, when said Essington would convey said real estate to said Gresham, or his said wife, and said Essington's notes should be surrendered to him, and his said mortgage should be satisfied; that, in accordance with this agreement, on said last named day, by the procurement and at the special instance and request of said Robert, and of no one else, said Frisbie and his wife made a deed conveying said real estate to said Essington, and said Essington executed to said Frisbie the notes and mortgage described in the complaint, and said Frisbie assigned said notes, without recourse on him, to said Tryphenia; that when said deed was so made by said Frisbie and wife, said real estate, except as to the mere legal title thereto, was the absolute and exclusive property of said Robert, and neither said Frisbie nor his wife had any beneficial or pecuniary interest therein; that said Essington has never paid any money or other thing of value to said Frisbie, or any one else, for or on account of said real estate, or of any interest therein; that at the time of the execution by Essington of said notes and mortgage, he did not owe said Frisbie any money whatever, either for said real estate, or on any account, but they were executed without any consideration whatever therefor; that when they were endorsed by Frisbie, no money or other thing of value was paid or delivered to him, nor has there been, before or since, any such payment or delivery by said Tryphenia, or in her behalf, for or on account of said assignment of said notes, or either of them; that said deed from Frisbie and wife, and said notes and mortgage, and said assignment to said Tryphenia, were each and all parts of a single scheme of fraud, and were each and all made, or procured to be made, for the purpose of saving and securing to said Robert and his family said real estate, and with the intent to hinder, delay, or defraud said creditors of Robert; that at and before the 25th of May, 1867, and at and before the day on which the deed from said Frisbie and his wife to said Essington, and said notes and mortgage of Essington to Frisbie were executed, and at and before the time when said notes were endorsed to said Tryphenia, and at and before the endorsement of said notes by said Tryphenia to said Mary D. Gresham, daughter of said Robert, on the 24th of January, 1870, said Robert was justly indebted to the appellee Julius Louis in a large sum of money to wit, $ -----; that afterward, on the day of December, 1872, and before said Mary endorsed said notes to the appellant, said Robert being justly indebted to said Louis in a large sum of money, to wit, $ -----, which indebtedness was contracted by said Robert long before said 25th day of May, 1867, and still remains wholly unpaid, said Louis was compelled to, and did, commence an action against said Robert in the court of common pleas of said Clark county, for the recovery of the amount due on said last mentioned indebtedness; that such proceedings were had in said action in said court of common pleas, that, on the 17th of January, 1873, judgments were rendered by said court in favor of said Julius Louis and against said Robert, one for $ 775.60, without relief from valuation or appraisement laws and costs, and one for $ ----- and costs.

The issuing of execution upon said judgment for $ 775.60, the levying thereof upon said real estate as the property of said Robert, who was then in possession thereof, as he had been for more than twenty years, and the sale thereof by the sheriff to said Julius Louis in fee simple for $ 4,273.72 on the 8th of March, 1873, and the execution of a deed by the sheriff to said Louis, are stated at length.

It is further alleged that at the time of the rendition of said judgment in favor of said Louis against said Robert, and at the time of the issuing of said execution and the levy thereof, and said sale and conveyance to said Louis, said notes and mortgage were still in the possession and control of said Mary, and the pretended endorsement and assignment of said notes by said Mary to the appellant had not been made; that said Tryphenia endorsed and assigned said notes to said Mary without the payment of any money or any thing of value; that after the maturity of all of said notes, said Mary pretended to endorse or assign each of them to the appellant, but said endorsements or assignments were severally made without the payment of any money or thing of value therefor by the appellant; that said several endorsements and assignments by Tryphenia and Mary were made in furtherance of said object, for which said notes and mortgage were originally executed, to enable said Robert to save and secure said real estate to him and his family from the appellee Louis and his other creditors, and with intent to hinder, delay or defraud said creditors of said Robert.

It is further alleged, that by virtue of said sale and conveyance to appellee Louis, and of the facts...