Jackson v. Swope

• Decision Date: 30 March 1893
• Docket Number: 16,024
• Parties: Jackson v. Swope et al
• Court: Indiana Supreme Court

33 N.E. 909

134 Ind. 111

Jackson v. Swope et al

No. 16,024

Supreme Court of Indiana

March 30, 1893

From the Morgan Circuit Court.

Judgment affirmed.

J. H Jordan, O. Matthews, A. M. Cunning and W. R. Harrison, for appellant.

R. N Lamb and R. Hill, for appellees.

OPINION

Olds, J.

This is an action by the appellant against the appellees to set aside an alleged fraudulent conveyance of land by the appellee William J. to his co-appellee, and wife, Amanda J. Swope, and subject it to the payment of a judgment of $ 3,000 in favor of appellant against the appellee William J. Swope, alleging that the conveyance was without any consideration.

The appellees joined issue on the complaint by answer of general denial.

The cause was tried by the court without the intervention of a jury. On the trial of the cause, the court permitted evidence showing, or tending to show, a valuable consideration for the conveyance of the land by Swope to his wife, the deed reciting that the consideration was "for the sum of love and affection--Dollars."

The question as to the consideration for the deed was gone into fully on the trial of the cause, a number of witnesses being examined in relation thereto, and cross-examined, without objection. Afterwards, and about the close of the trial, but before the submission to the court for decision, the appellant moved to strike it out, on the ground that the appellee Amanda J. Swope was bound by the consideration stated in the deed, and estopped from showing that there was a valuable money consideration, independent of the consideration of love and affection, stated in the deed.

The court overruled the motion, and appellant excepted, but the question upon the ruling is not presented in this court for review. To have preserved the question to this court, it was necessary to have included it in the motion for a new trial, as one of the grounds for a new trial. If an error, it was an error of law occurring at the trial. The overruling of this motion was not assigned as a cause for a new trial, and no question is presented as to the correctness of such ruling. Jeffersonville, etc., R. R. Co. v. Riley, Admx., 39 Ind. 568; Meyer v. Bohlfing, 44 Ind. 238; Kent v. Lawson, 12 Ind. 675; Wright v. Potter, 38 Ind. 61; Waggoner v. Liston, 37 Ind. 357; Elliott v. Russell, 92 Ind. 526; Leary v. Ebert, 72 Ind. 418; Boots Admr., v. Griffith, Admr., 89 Ind. 246.

The next question presented relates to the ruling of the court in excluding the testimony of one Boyd, offered as impeaching testimony of Samuel Swope, father of appellee William J. There was no error in this ruling. The court limited the examination of Samuel Swope to conversations had with Boyd in 1888, and the examination of Boyd sought to elicit a statement made by Samuel at another time. If any error was committed, it was in limiting the examination for the purpose of laying the foundation for impeachment to the year 1888, and as to this ruling no question is presented. The impeaching testimony only became competent after a foundation was made. Samuel Swope was not a party to the suit, and his contradictory statements made out of court only became competent as impeaching evidence.

Counsel also present a question in relation to the ruling on the motion for a new trial, based upon...