Kedey v. Petty
| Citation | 54 N.E. 798,153 Ind. 179 |
| Decision Date | 04 October 1899 |
| Docket Number | 18,416 |
| Parties | Kedey v. Petty, Guardian, et al |
| Court | Supreme Court of Indiana |
From the Clinton Circuit Court.
Affirmed.
M. A Morrison and J. T. Hockman, for appellant.
Palmer & Palmer, W. S. Sims, C. G. Guenther and A. B. Clark, for appellees.
The special finding discloses that appellant was intermarried with Matthew T. Kedey in 1862, and is still his wife. She had no property at the time of her marriage, except one heifer two shoats, and one dozen chickens, and has since acquired none by gift, devise, or descent, except one cow, given her by her husband to replace the heifer, which-died a few months after the marriage. At the time of the marriage, Matthew T Kedey had about eighty-six acres of land in Clinton county, upon which they settled, and have continuously resided, raising a family of three children. At no time has appellant been engaged in any business or employment upon her own account, but during all her married life has been engaged in performing such domestic duties as pertain to a farmer's wife. Within the last twenty-four years, by an arrangement with her husband, appellant received and kept the proceeds of the surplus butter, eggs, chickens, ducks, geese, and garden products, grown and produced on her husband's farm by their joint labor, and sold; she, from such proceeds, purchasing an indefinite portion of the groceries and clothing used by the family, and her husband purchasing the residue. From the sales of such property within the last twenty-four years, appellant, from time to time, let her husband have small sums of money, amounting in the aggregate to $ 1,200, her husband agreeing with her that he would repay the money so received from her. On the 28th day of December, 1891, her husband executed to appellant a note, whereby he agreed to pay her, twelve months after date, $ 1,200 with eight per cent. interest from date. On the 1st day of January, 1896, her husband executed to her another note calling for $ 399.55, payable one day after date, with eight per cent. interest and attorney fees. On the 5th day of December, 1896, her husband executed to her another note calling for $ 170, payable one day after date, with eight per cent. interest and attorney fees. On the 19th day of December, 1896, her husband executed to her still another note, calling for $ 896.68, payable one day after date, with eight per cent. interest and attorney fees. On the 9th day of December, 1896, appellant and her husband executed a mortgage on sixty acres of the husband's lands to Kramer, to secure $ 1,100, money borrowed and used by the husband in the payment of his individual debts. On the same day, to wit, December 9, 1896, her husband executed to appellant his mortgage upon all of his lands, subject and junior, however, to the Kramer mortgage, to secure the payment to appellant of said several notes, namely: one dated December 28, 1891, for $ 1,200, one dated January 1, 1896, for $ 399.55, and one dated December 5, 1896, for $ 170. On the 24th day of December, 1896, her husband executed to her a further mortgage upon all his lands, purporting to secure to her the payment of said note dated December 19, 1896, calling for $ 896.68. Each of the mortgages was duly recorded in the recorder's office of Clinton county within the time prescribed by law.
The husband's lands at the date of said mortgages were of the value of $ 3,440. Appellant's husband, at the date of said mortgages and at the commencement of this suit, had no other property subject to execution.
Appellant, on the 26th day of December, 1896, brought her action in the Clinton Circuit Court upon all of her said notes and mortgages against her husband, her husband being present with her in town, and was served with summons on the same day; and on the 5th day of January, 1897, appellant took judgment and a decree of foreclosure against her husband, and all of his lands, by default, for $ 3,369.80 and costs.
At the time of the execution of said notes and mortgages to appellant, her husband and their son, William U., were present with her. On the 13th day of January, 1897, her husband executed to appellant a quitclaim deed purporting to convey to her all of said mortgaged premises. Between the dates of August 13, 1892, and January 1, 1896, appellant's husband and their son, William U. Kedey, executed their notes to divers persons for borrowed money, amounting to $ 1,670, which, remaining unpaid, judgments were taken thereon against the makers at the January term, 1897, of the Clinton Circuit Court. Executions were issued upon the judgments against both defendants, and in each case returned nulla bona. William U. is a resident of the county, and never had any property subject to execution. Each of the notes and mortgages purporting to secure the same was executed to appellant by her husband without consideration, and the last three notes and both mortgages were executed by her husband, and received by her, for the purpose of hindering and delaying the creditors of the husband; and the foreclosure of the mortgages and quitclaim deed to appellant were further steps mutually intended by appellant and her husband to hinder and delay the plaintiffs and the husband's other creditors from the collection of their debts.
The complaint is by the judgment creditors of the husband, and seeks to vacate, as fraudulent against the plaintiffs, the judgment and decree rendered in favor of appellant January 5, 1897, for $ 3,369.80, and also the quitclaim deed to appellant dated January 13, 1897, and to subject the lands to the payment of the plaintiffs' judgments. A demurrer to the complaint was overruled, trial upon the general denial, and finding and judgment for the plaintiffs.
No infirmity of the complaint is pointed out, but a reversal of the judgment is asked for alleged errors of the court in stating conclusions of law and in overruling appellant's motion for a new trial and to modify the judgment.
The conclusions of law are to the effect that the lands described in the complaint ought to be sold for the payment of the plaintiffs' judgments, subject to the Kramer mortgage and the inchoate rights of appellant. It is insisted that the facts found do not sustain the conclusions of law, in this: First, that it is not found that the plaintiffs, at the commencement of this suit, held judgments against Matthew T. Kedey; and second, that such judgments were unpaid.
It is stated in the special finding that on the 13th day of August, 1892, William U. and Matthew T. Kedey executed their note for borrowed money to the plaintiffs Allen, which note was renewed for one year from August 13, 1893, and which renewed note was credited September 27, 1895, by $ 86.50.
With respect to the plaintiffs, Petty and Wilson, the special finding recites the execution to each of promissory notes for borrowed money by William U. and Matthew T. Kedey, the rendition of judgment thereon by the Clinton Circuit Court and that said judgments remained wholly unpaid.
The first objection urged is that these findings are insufficient in that they do not find in terms that the several judgments were rendered against Matthew T. Kedey. We concede the premise that nothing can be taken by intendment, and, if it does not appear from the findings that the plaintiffs, at the commencement of the action, had valid, subsisting judgments against Matthew T. Kedey, they cannot call in question his right to mortgage and convey his lands to others. With respect to the Allen note,--the finding recites the execution of the note by William U. and Matthew T. Kedey, September 13, 1892, and adds, "Which note was renewed September 13, 1893, for one year." From this it is urged that we can not determine that the note was renewed by the same parties, or, rather, that Matthew T. Kedey was a party to the renewal, and, if not a party to the renewal, could not have been a party to the judgment rendered thereon.
There can be no doubt but the words "which note" refer for their antecedent to the note executed by William U. and Matthew T. Kedey. No other note between the parties, or any of the parties, was before the court. And it was the note of the two that was renewed, the obligation of both to pay the plaintiff a sum of money. How, then, could the obligation be renewed by a single one of them, or by one of them and a stranger? "Renewed" or "renewal," as applied to promissory notes, in commercial and legal parlance, means something more than the substitution of another obligation for the old one. It means to reestablish a particular contract for another period of time. It means to restore to its former conditions. "An obligation on which the time of payment has...
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