Isgrigg v. Pauley

• Decision Date: 08 October 1897
• Docket Number: 18,086
• Citation: 47 N.E. 821,148 Ind. 436
• Parties: Isgrigg v. Pauley et al
• Court: Indiana Supreme Court

47 N.E. 821

148 Ind. 436

Isgrigg v. Pauley et al

No. 18,086

Supreme Court of Indiana

October 8, 1897

From the Clinton Circuit Court.

Affirmed.

J. V Kent and Palmer & Palmer, for appellant.

John C Farber, for appellees.

OPINION

Hackney, J.

The appellant sued the appellees to set aside, as fraudulent, a conveyance of real estate made by Isaac M. Pauley and wife, and subject said real estate to the payment of a judgment in favor of the appellant, and against said Pauley.

It is urged on behalf of the appellant, and conceded by the appellees, that the trial court heard the evidence, and found for the appellees, upon the theory that said Pauley was a resident householder, and entitled to an exemption at the time of the conveyance complained of; that his wife was entitled, as against the appellant, to one-third in value of the real estate, as representing her inchoate interest therein, and that such exemption, and the one-third interest of the wife, left no part of the property conveyed, or its value, to be applied to the appellant's judgment.

Appellant's learned counsel insist that Pauley's right to an exemption was not an issue in the cause, since no answer alleging the right and demanding its enforcement was specially pleaded.

The only assignment of error by the appellant is upon the action of the lower court in overruling his motion for a new trial, and a reference to that motion discloses that no ruling of the trial court upon the admissibility of any evidence upon the subject of the exemption was questioned or urged as cause for a new trial.

It may well be doubted, therefore, whether this question is properly presented by the record. There are decisions of this court to the effect that, where a debtor, in an action affecting his property, desires to maintain his right of exemption, and secure the property to himself against such action, as in attachment and otherwise, he must, by some special plea, set up his claim.

The question in the case before us is as to whether it is fraudulent for one having the right of exemption to transfer his property which is subject to such right, intending thereby to remove the property beyond the reach of creditors. In other words, is it fraudulent to dispose of property which if retained, is within the debtor's right of exemption, and which he desires shall be exempt? In Blair v. Smith, 114 Ind. 114, 126, 5 Am. St. 593, 15 N.E. 817, it was said: "Property exempt from execution is not subject to any claim of the creditor, but is absolutely free from all claims of creditors. No execution or other writ is a lien upon it. The creditor has no claim upon it in any form, and it is impossible to conceive any logical ground upon which property not subject to the claims of creditors can be held to have been fraudulently conveyed. If creditors have no interest in the property, it is inconceivable that they can justly claim that in disposing of it the debtor has been guilty of fraud. The whole doctrine of annulling fraudulent conveyances rests upon the ground that the creditor has the right to resort to the property, and where he has no such right it is impossible that a conveyance can be deemed fraudulent. Surely, a man may do what he will with property which is his own, and free from all claims of creditors." The rule stated has the support of all the recent holdings of this court upon the subject. Dumbould v. Rowley, 113 Ind. 353, 15 N.E. 463; State, ex rel., v. Harper, 120 Ind. 23, 22 N.E. 80; Barnard v....