Hunsinger v. Hoffer
| Decision Date | 19 April 1887 |
| Citation | 11 N.E. 463,110 Ind. 390 |
| Parties | Hunsinger and others v. Hoffer. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Fayette county.B. F. Claypool & J. C. Claypool and Samuel S. Harrell, for appellants. D. W. McKee, Edgar O'Hair & J. F. McKee and Conner & Frost, for appellee.
The appellee brought this suit to set aside a conveyance executed by John A. Hunsinger to Peter Hunsinger, alleging in his complaint that it was executed to defraud the creditors of the grantor. The claim of the appellee to subject the land to sale on execution was based on a judgment obtained against John A. Hunsinger for the seduction of the appellee's wife, and on the trial the court permitted the appellee to prove a conversation with Peter Hunsinger, in which he spoke of the intimacy between John A. Hunsinger and the appellee's wife, and of the probability that it would cause great loss to John A. Hunsinger. There was no error in admitting this evidence. It tended to show that the grantee had knowledge that there was an existing claim against his grantor, and it was at least some evidence tending to impeach his good faith. It tended to prove that the appellee had a claim against the grantor prior to the execution of the conveyance, and that the holder of the claim was a creditor, for one who has a cause of action for the seduction of his wife is, in legal contemplation, a creditor of the wrong-doer. One having a legal right to damages capable of enforcement is a creditor. Bishop v. Redmond, 83 Ind. 157;Shean v. Shay, 42 Ind. 375, 13 Amer. Rep. 366; Smith v. Culbertson, 9 Rich. 106;Rogers v. Evans, 3 Ind. 574;Wright v. Brandis, 1 Ind. 336;Damon v. Bryant, 2 Pick. 411. It is always competent to prove the grantee's knowledge of the grantor's indebtedness in suits to set aside fraudulent conveyances.
There was no error in admitting in evidence the transcript of the judgment recovered against John A. Hunsinger. The judgment was competent for the purpose of establishing the claim of the appellee, but, of course, did not bind the appellant Peter Hunsinger further than it established the fact that the appellee was a creditor of his grantor.
No objections were made to the form of the clerk's certificate of the transcript on the trial, and it is too late to make them now.
Several of the questions discussed by counsel are effectually disposed of by the general statement that, in a suit to set aside a fraudulent conveyance, the plaintiff is not confined to evidence of the one transaction, but has a right to give evidence of the general course of business between the grantor and the grantee, as well as of distinct transactions. The statements of the grantors by whom a fraudulent conveyance is executed are admissible against themselves, and cannot be excluded from the jury on the objection of the grantee, although they may not bind him. In this instance the statements of the grantors were competent, at least against themselves, and were rightly admitted. The declarations of the grantors will, however, be admissible against the grantee wherever it appears, either by direct or circumstantial evidence, that they and the grantee were acting in concert. Bishop v. Redmond, supra;Daniels v. McGinnis, 97 Ind. 549;Riehl v. Evansville, etc., Ass'n, 104 Ind. 70, 3 N. E. Rep. 633.
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