Jackson v. Sayler

• Decision Date: 13 May 1902
• Citation: 63 N.E. 881,30 Ind.App. 72
• Parties: JACKSON et al. v. SAYLER.
• Court: Indiana Appellate Court

30 Ind.App. 72

63 N.E. 881

JACKSON et al.

v.SAYLER.¹

Appellate Court of Indiana, Division No. 1.

May 13, 1902.

Appeal from circuit court, Lake county; J. W. Youche, Special Judge.

Action by Eva M. Sayler against Lorenzo D. Jackson and others. From a judgment in favor of plaintiff, defendants appeal. Reversed.Peter Crumpacker, for appellants.

HENLEY, J.

This was an action by the appellee, Eva M. Sayler, against the appellant Lorenzo D. Jackson, who was indebted to appellee, to set aside certain conveyances alleged to be fraudulent, and to subject the land so conveyed to the payment of a judgment previously obtained by her. To this action Mary E. Jackson, the wife of said Lorenzo D., and their children, Eva A. and Sarah M., were made defendants in the lower court, and all join in this appeal. Appellants separately demurred to the complaint. Their demurrers were overruled, whereupon they joined in an answer in two paragraphs; the first being a general denial; the second averring facts in confession and avoidance. No reply was filed. The cause was submitted to the court for trial, and there was a finding and judgment in accordance with the prayer of the complaint,-that the said conveyances were fraudulent, and that the land so conveyed be subjected to the payment of appellee's judgment. Appellants' motion for a new trial was overruled.

It is first urged by counsel for appellants that the complaint was insufficient. The principal objection to the complaint, as stated by counsel, is: “The complaint wholly fails to allege that the debtor, Lorenzo D. Jackson, at the time he and his wife and co-appellant conveyed the lots in controversy to their co-appellants, Eva A. and Sarah M. Jackson, had no other property subject to execution, and is therefore bad.” If this statement was borne out by the record, the cause would have to be reversed for this reason. Wilson v. Boone, 136 Ind. 142, 35 N. E. 1096;Nevers v. Hack, 138 Ind. 260, 37 N. E. 791, 46 Am. St. Rep. 380;Taylor v. Johnson, 113 Ind. 164, 15 N. E. 238. But we find upon examination of the complaint that, after alleging the date when the judgment against the appellant Lorenzo D. was rendered in favor of the appellee, it is averred that since that time, and up to the time of the filing of the complaint, said Lorenzo D. Jackson did not own any property, real, personal, or mixed, subject to execution. We think this averment sufficient in this regard. The complaint also properly identifies and describes the judgment pleaded therein. We think the complaint good, and that the trial court properly overruled appellant's demurrer thereto.

It is next argued that the decision of the court is not sustained by the evidence. We have carefully examined the evidence. It presents a state of facts which conclusively shows that the conveyance by Lorenzo D. Jackson was not a fraudulent conveyance. Under the uncontradicted evidence, the highest valuation placed upon the lots and improvements in controversy was $2,100. It is further shown by the uncontradicted evidence that there was an existing, valid mortgage upon the property conveyed, amounting to $900, and that the appellant Lorenzo D. is, and was all the time covering this controversy, a resident householder, and as such entitled to an exemption of $600. It cannot be denied that, if these lots so conveyed should be subjected to a judicial sale, the appellant Mary E. Jackson, as the wife of said Lorenzo D., would be entitled to one-third of the land, or one-third of the proceeds of the sale thereof, to wit, $700. The situation presented by the uncontradicted evidence is as follows:

+---------------------------------------------------+
                ¦Valuation of real estate conveyed           ¦$2,100¦
                +--------------------------------------------+------¦
                ¦Value of wife's one-third upon judicial sale¦$ 700 ¦
                +--------------------------------------------+------¦
                ¦Amount of existing mortgage                 ¦900   ¦
                +--------------------------------------------+------¦
                ¦Appellant Lorenzo D.'s exemption            ¦600   ¦

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