Hillyer v. Boyd

• Decision Date: 03 March 1941
• Docket Number: 16378.
• Citation: 32 N.E.2d 93,109 Ind.App. 18
• Parties: HILLYER v. BOYD et al.
• Court: Indiana Appellate Court

32 N.E.2d 93

109 Ind.App. 18

HILLYER v. BOYD et al.

No. 16378.

Appellate Court of Indiana, in Banc.

March 3, 1941

Robert H. McKinney and Arista T. Livengood, both of Covington, for appellant.

Lee Whitehall, of Attica, for appellees.

BRIDWELL Judge.

George W. Harris, now deceased, was on the 17th day of October 1934, the owner of certain real estate situate in the town of Rob Roy in Fountain County, Indiana. On that date, he conveyed said real estate to the appellee, Anna Kight, by warranty deed. He died October 2, 1935, and thereafter on January 29, 1937, John C. Hillyer was appointed as administrator of his estate. On May 4, 1937, appellees Winnie Boyd, Mary Starkey, George W. Harris, Jr., and Arthur C. Harris, instituted an action against appellees, Anna Kight and James Harris, and the appellant to set aside the deed heretofore mentioned for alleged fraud in its procurement. A motion for a change of venue from the county was duly filed and by agreement of the parties, the cause was venued to Warren County. While the cause was pending in the Warren Circuit Court, appellant filed his cross-complaint against the appellees who constituted the sole heirs of the deceased and their respective wives or husbands. The cross-complaint alleges in substance, among other things, that no personal estate of any kind or description belonging to the defendant at his death "has come to the plaintiff's (appellant's) knowledge or possession"; that claims have been filed and allowed against the estate amounting to $297.92 and that there are other claims filed and pending that the defendant in 1934 was seized in fee simple of certain real estate specifically described in said cross-complaint, which he in said month of October, 1934 conveyed to Anna Kight without consideration and for the purpose of defrauding his then existing creditors; that said conveyance was accepted by Anna Kight with full knowledge of the intention of the decedent and with the purpose and intent of aiding and abetting him in his fraudulent design; that from the date of said conveyance the said George W. Harris was and continuously remained wholly insolvent. The cross-complaint prayed that said deed to Anna Kight be annulled, set aside and declared fraudulent; that the real estate described therein be decreed liable for the payment of the debts of the estate and that an order authorizing its sale for that purpose be granted.

The issues on the cross-complaint were closed by the filing of answers of general denial thereto by Winnie Boyd, Mary Starkey, Anna Kight and their respective husbands. All other defendants were duly defaulted.

On May 2, 1938, the date fixed for trial, the plaintiffs, Winnie Boyd, et al., dismissed the complaint filed by them against Anna Kight, et al., leaving for trial and decision the issues formed on the cross-complaint.

The cause was submitted to the court and upon proper request thereof the court in due course made its special finding of facts and stated conclusions of law thereon. Both were adverse to appellant and he duly excepted to each of the conclusions of law. Judgment, in accordance with the decision and...