Hubbs v. Bancroft

• Decision Date: 30 November 1853
• Parties: Hubbs and Others v. Bancroft and Others
• Court: Indiana Supreme Court

4 Ind. 388

Hubbs and Others v. Bancroft and Others

Supreme Court of Indiana

November 30, 1853

ERROR to the Jefferson Circuit Court.

The decree is reversed with costs. Cause remanded, with instructions to dismiss the bill.

S. C Stevens and J. Sullivan, for the plaintiffs.

J. W Chapman, for the defendants.

OPINION

Davison J.

Bill in chancery by the defendants in error against the plaintiffs in error. The object of the suit was to subject a part of lot No. 61, in the city of Madison, to the payment of a judgment at law against Benjamin and Joseph Hubbs. Benjamin Hubbs, Charles W. Basnet and Charles Fox answered. The other defendants, viz., David H. White, Edward Warner and Joseph Warner, (who were partners under the name of David H. White & Co.) Samuel Bespham, and James F. D. Lanier, were defaulted.

The facts are substantially as follows:

On the 6th of March, 1836, Basnet, by deed in fee, conveyed the lot in question to Benjamin Hubbs, who was his son-in-law, the husband of his only child. The property conveyed by this deed was a mere gift. In 1841, previous thereto, and up until 1844, Benjamin and Joseph Hubbs were partners in the dry-goods business in Madison. Joseph was a man of limited means, and gave to the concern no credit. Benjamin had an extensive credit in the eastern cities; and the firm had contracted a large amount of indebtedness. In April and September, 1841, they executed three notes to the complaints, who, at the September term, 1846, recovered a judgment in the Jefferson Circuit Court on a balance then due on said notes, for 2,765 dollars, upon which an execution was issued and returned "nulla bona." The present suit is founded upon said judgment.

On the 1st of September, 1843, Benjamin Hubbs called on Basnet and proposed to re-convey said lot to him for the consideration of 1,060 dollars. Basnet was at first unwilling to accede to the proposition, but having become satisfied that to do so would advance the interest of Hubbs, he gave him 1,060 dollars, and took a conveyance. At this period the lot was worth 4,500 dollars. When the re-conveyance was made, Hubbs was largely indebted--had become embarrassed and unable to meet his debts promptly. Basnet knew of this embarrassment, but not the extent of it. He believed that the pressure on Hubbs was temporary, but that he was able to meet all the demands against him. Hubbs had suspended payment, but it appears that he thought his means sufficiently ample to enable him speedily to render full satisfaction to all his creditors. Within a short period after the lot was reconveyed, Basnet purchased of B. and J. Hubbs their entire stock of goods then on hand, at full value. In payment therefor, he gave them his promissory notes. These notes were used by Hubbs in paying their debts. The object of Basnet in making this purchase, as also that of the lot, appears to have been to enable Hubbs to pay all his debts at an early day. It was shown that one William Delta, on the 21st of November, 1843, recovered a judgment in the Circuit Court of the United States for the district of Indiana, against B. and J. Hubbs, for 1,303 dollars. This judgment was, on the 29th of January, 1844, duly assigned to said Basnet. On the 21st of May, 1844, Atwood & Co., upon notes given in April, 1841, and in October, 1842, recovered a judgment, in the same Court, against said B. and J. Hubbs, for 1,566 dollars. This judgment was assigned to James F. D. Lanier, and upon it an execution was issued, and on the 29th of January, 1847, the lot in question was sold to said Lanier for 2,225 dollars, by the marshal for said district, who made him a deed. The amount for which the lot sold was one-half its appraised value. Afterwards, on the 22d of February, 1847, Lanier, for the consideration of 2,225 dollars, conveyed the lot to Basnet. It further appears that Charles Fox, on the 18th of November, 1844, upon a note dated September 8, 1841, recovered a judgment in said Court against B. and J. Hubbs for 1,835 dollars; that Samuel Bespham, on the 24th of September, 1844, upon a note given in September, 1841, obtained a judgment against them, in the Jefferson Circuit Court, for 948 dollars; and David H. White & Co., on the 21st of August, 1847, upon a note dated September 7, 1841, recovered a judgment in said Court against Benjamin Hubbs for 648 dollars. All of the above judgments, at the time this bill was filed, were outstanding and unsatisfied.

The bill prays that the premises be sold; that after the payment of said 1,060 dollars, with interest from the 1st of September, 1843, out of the proceeds, to the said Basnet, the complainants may be paid their judgment and interest; and for general relief.

The cause was submitted on bill, &c. The Court, upon final hearing, decreed that if Basnet would, within ninety days, &c., pay to the complainants their judgment, with interest, &c., then his title to the premises was to be forever good, &c., against the creditors of Hubbs; but in default of such payment the lot was to be sold, &c.; that out of the proceeds Basnet should be first paid 1,060 dollars, with interest, &c. The balance, or so much thereof as might be necessary, was to be applied to said judgment and interest thereon, &c., and the balance, if any, to be paid into Court, to await the further order, &c.

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