Hays v. Hostetter

• Decision Date: 16 September 1890
• Docket Number: 14,369
• Citation: 25 N.E. 134,125 Ind. 60
• Parties: Hays, Administrator, v. Hostetter et al
• Court: Indiana Supreme Court

25 N.E. 134

125 Ind. 60

Hays, Administrator, v. Hostetter et al

No. 14,369

Supreme Court of Indiana

September 16, 1890

From the Noble Circuit Court.

Judgment affirmed.

D. W Green, F. P. Bothwell and H. G. Zimmerman, for appellant.

W. B Hess, for appellees.

OPINION

Coffey, J.

On the 20th day of February, 1885, the appellees, Henry W. Hostetter and Jane Hostetter, husband and wife, conveyed by quit-claim deed to their co-appellees, Daniel J. Roderick and John H. Barden, the land in controversy in this suit, together with certain other lands in Marshall county, Indiana. As part of the same transaction Roderick and Barden executed the following instrument of writing, viz.:

"Know all men by these presents, that we have this day received of H. W. Hostetter and Jane Hostetter a deed of conveyance of the following described real estate to wit: * * and in consideration of which we agree to sell, at the earliest possible period, for the best price possible, to obtain and apply the same on the debts of said H. W. Hostetter, as designated to us by a schedule of names and amounts hereto attached. In the event that the said lands will not sell for a sum sufficient to pay said debts in full, then it shall be applied on all of said debts at an equal per cent. on the dollar of said debts; and if the same can be sold for a sum in excess of said debts then such excess shall be paid to said Jane Hostetter."

The schedule referred to in this instrument of writing consists of the names of twenty-two creditors holding claims against Henry W. Hostetter, aggregating the sum of $ 8,559.67.

At the times of the execution of this conveyance, contract and schedule the appellant held certain promissory notes against the said Henry W. Hostetter, upon which he subsequently recovered judgment in the Marshall Circuit Court for the sum of $ 1,463.71.

The appellant's claim was not included in the schedule above referred to.

This action was brought for the purpose of setting aside the conveyance of the land in Noble county, and subjecting the same to the payment of the debt due to the appellant. The complaint charges, in substance, that at the time of said conveyance the grantor, Henry W. Hostetter, was wholly insolvent; that he was indebted to the appellant as administrator in the sum of $ 1,463.71, for which sum he afterwards recovered judgment in the circuit court of Marshall county, Indiana; that said conveyance was voluntary and without any consideration; that the purchasers were trustees, appointed by the grantor, to sell and convey the property in controversy, and with the proceeds to pay certain of the grantor's creditors, to the exclusion of others, in full, or pro rata, and to return the surplus, if any, to the grantor's wife; and that said conveyance was made for the purpose of delaying and defrauding the appellant as one of the creditors of the grantor.

Upon issues formed the cause was tried by the court, which at the request of the parties made a special finding of the facts proven, and stated its conclusions of law thereon.

In addition to the facts above stated it appears from the special finding, that at the time of said conveyance Henry W. Hostetter was wholly insolvent, owing debts to the amount of $ 8,559.67 exclusive of appellant's claim, his property, of every description, being of much less value than that sum, of which fact the grantees in said deed had full knowledge; that said conveyance was made for the avowed purpose of preferring certain of the creditors of Henry W. Hostetter to the exclusion of others, and was based upon no other consideration than the agreement of Roderick and Barden to sell said land and apply the proceeds as set out in the contract above set forth.

One of the claims contained in the list and schedule of creditors is a claim in favor of the grantees in said deed amounting to $ 500.

The land in Marshall county was encumbered by mortgage liens to the amount of $ 3,500, the other debts named in said schedule being unsecured.

At the time of said conveyance Henry W. Hostetter had no property except said land out of which the appellant could make his claim, and he has ever since remained wholly insolvent.

Upon these facts the court stated as its conclusion of law that the appellant was not entitled to the relief prayed, and entered a judgment against him for costs.

The first assignment of error calls in question the correctness of the above conclusion of law upon the facts found.

Section 2662, R. S. 1881, provides that "Any debtor or debtors in embarrassed or failing circumstances may make a general assignment of all his or their property, in trust for the benefit of all his or their bona fide creditors; and all...