Heiney v. Lontz
| Decision Date | 08 April 1897 |
| Docket Number | 17,981 |
| Citation | 46 N.E. 665,147 Ind. 417 |
| Parties | Heiney, Administrator, v. Lontz et al |
| Court | Indiana Supreme Court |
From the Henry Circuit Court.
Affirmed.
James Brown and W. A. Brown, for appellant.
B. F Mason and M. E. Forkner, for appellees.
The appellant, administrator of the estate of Susannah Heiney deceased, sued the appellees, Emanuel G. Lontz and Mary Lontz, his wife, in two paragraphs of complaint. The first paragraph charges an indebtedness upon a promissory note executed by the appellees to said Susannah Heiney, and the second charged the same indebtedness and alleged that said note was executed in renewal of another note, previously executed by the appellees, in February, 1878. It was further alleged that said original note was executed to secure a loan of $ 700.00 extended by said decedent to pay off and discharge a purchase money mortgage executed by the appellees to one Clift, for lands purchased by said Emanuel G. Lontz; that the appellees "applied to the plaintiff's decedent to loan them the money to satisfy said Clift, and thereby avert the foreclosure of said mortgage, and they promised the said decedent, who was the mother of said Mary Lontz, that, if she would furnish them $ 700.00 to be used in the payment of said mortgage, she, the said decedent, should hold the lien upon said land that said Clift then held, as her security," and that the loan was made pursuant to said promise.
It was alleged, also, that said Emanuel G. Lontz was and had been insolvent and had, through a third party, conveyed said lands to his said wife, intending thereby to fraudulently cheat, hinder and delay the decedent in the collection of said indebtedness, and that Mrs. Lontz took said conveyance with like intent. Upon the first paragraph a personal judgment was sought against both of the appellees, and upon the second a personal judgment was sought against Emanuel G. Lontz, with a lien upon the lands as against both of the appellees. Issues were formed and a trial had, resulting in a special finding and judgment in favor of Mary Lontz and against Emanuel G. Lontz for $ 854.00.
The facts specially found were that in 1868 Clift conveyed 164 acres of land to Emanuel G. Lontz, who executed his several notes for the purchase money and, together with said Mary Lontz, executed a mortgage of said lands to secure said notes. Forty acres of said lands were reconveyed to Clift, in part payment of said purchase money, and said Mary Lontz, from time to time, supplied sums of money, aggregating $ 2,600.00, which were paid in partial discharge of said purchase money upon the agreement between said Mary and her said husband that she should be secured therein from said lands. In February, 1878, Clift was enforcing a decree of foreclosure for the balance of said purchase money due him and, at the request of Emanuel and Mary, the decedent supplied to Emanuel $ 700.00 for that purpose, and which were, together with other moneys, applied in payment of Clift's decree.
In evidence of said loan by the decedent said Emanuel and Mary Lontz executed to her their note for $ 700.00. In February, 1886, a renewal of said lastnamed note was demanded, and Emanuel executed the note in suit, sending it to the decedent, and, "afterwards, a short time, at the house of Susannah Heiney, and at her request, Mary Lontz signed the same," there being no other consideration than that stated for the execution thereof. It was found, also, that in the conveyance complained of the appellees acted pursuant to said agreement to secure said Mary and without any fraudulent intent, but with intent to satisfy the claim of said Mary for said sums so advanced. And it was found that the land conveyed was worth $ 3,100.00 and was incumbered in the sum of $ 825.00. The conclusions of law were that Mary Lontz should recover against the appellant and that the appellant should recover against the appellee, Emanuel Lontz.
The appellant excepted to the conclusions of law, filed a motion for a venire de novo, which was denied, and filed a motion for a new trial, which was overruled. The questions thus presented in the lower court are assigned as error in this court.
Upon the motion for a venire de novo the learned counsel for appellant cite Cottrell v. Nixon, 109 Ind. 378, 10 N.E. 122, and Roberts v. Lindley, 121 Ind. 56, 22 N.E. 967, each of which is to the effect that, where the findings of evidence are eliminated from the special finding there does not remain facts found sufficient to support a judgment on the issues, a venire de novo should be awarded. The complaint made against the special finding in this record is that the court failed to find upon the issue of fraud except in the statement of the absence of fraudulent intent, which statement, it is claimed, is a conclusion and not a fact. It will be observed that the authorities cited are not pertinent to the complaint made.
The several issues of fact cast the burden upon the appellants, and it is a well settled rule of practice that where the finding is silent upon any issue it will be presumed that there was no evidence supporting such issue, and the remedy, where the evidence supports the issue, is by motion for a new trial, and not by motion for a venire de novo. Citizens Bank v. Bolen, 121 Ind. 301, 23 N.E. 146; Town of Freedom v. Norris, 128 Ind. 377, 27 N.E. 869.
There is no discussion with reference to any particular ground of the motion for a new trial; but since counsel argue the weight and sufficiency of the evidence, we presume they intend to apply their argument to the alleged cause for a new trial that "the finding of the court is contrary to the evidence." One theory of the complaint was, as indicated by the quotation we have made from it, that the debt was enforceable as a lien upon the land by reason of the agreement of the appellees and the decedent that she "should hold the lien upon said land that said Clift then held." We have been unable to find the slightest evidence in support of this theory, and counsel, in their brief, do not claim that such evidence was given. Otherwise the complaint rests upon the theory that, in the first paragraph, both of the appellees were debtors of the appellant, and that, in the second paragraph, the appellee, Emanuel, was the debtor, and that, by reason of the fraudulent conveyance of the land to his wife...
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