Laird v. Davidson
| Decision Date | 20 June 1890 |
| Docket Number | 14,258 |
| Citation | 25 N.E. 7,124 Ind. 412 |
| Parties | Laird et al. v. Davidson |
| Court | Indiana Supreme Court |
From the Fountain Circuit Court.
Judgment reversed, with costs.
M. E Clodfelter, J. A. Lindley, J. L. Griffiths and A. F. Potts for appellants.
H. H Dochterman, T. F. Davidson and J. W. Newlin, for appellee.
This was an action instituted by the appellee to recover the possession of certain personal property.
John F. Davidson and the appellee were husband and wife, the appellant Laird was a constable of Cain township, Fountain county. John D. Moore had obtained a judgment against said John F. Davidson before a justice of the peace of said township. Rufus K. Syfers and Frank A. McBride had obtained two judgments before the same justice against said Davidson. Executions having been issued upon said judgments, they were placed in the hands of said constable, and by virtue of the authority therein given, he levied the same upon the said property.
Upon the issues joined the question presented for trial was as to whether the appellee or the said John F. Davidson was the owner of the property.
The question having been submitted to a jury, a verdict was returned for the appellee, and, over a motion for a new trial, judgment was rendered in accordance with the verdict.
The only error alleged to which our attention has been called rests upon the court's action in overruling the motion for a new trial. But several questions are presented for our consideration.
The theory of the appellants was that any claim or title which the appellee had or held to the property was acquired through her husband, and in fraud of his creditors.
On the trial of the cause the appellants offered to prove that a certain sorrel mare levied upon, before and at the time of the levy, was kept in a stable building which the said John F. Davidson had under his control as a tenant; that he paid the rent therefor, and took receipts for payments of rent in his own name. The trial court sustained objections to this evidence, and refused to hear it. In this ruling we think the court erred.
It is true the offered evidence may be regarded as somewhat insignificant in its character, but this court said long ago, that "Fraud may be deduced not only from deceptive or false representations, but from facts, incidents and circumstances, which may be trivial in themselves but decisive in the given case of a fraudulent design." Peter v. Wright, 6 Ind. 183.
While the circumstances which the appellants offered to prove would not, as between husband and wife, ordinarily be entitled to the same weight as in a case where that relation does not exist, it was a question for the jury to consider as to who had possession of the animal, and was exercising control over it; most certainly if the animal had been in the exclusive possession and control of the appellee after she claimed to have purchased it, this would have been a material circumstance for her to have proven.
In view of the other circumstances proven, and the rule as above stated, we are not at liberty to hold that the error was a harmless one.
We do not think that the court erred in refusing to give instructions numbered 5, 6, and 8, asked by the appellants. No difference from what source the appellee acquired money so that such acquisition was not tainted with bad faith, she had a perfect right to loan it to her husband, and take his promissory note therefor; and thereafter, and when in failing circumstances, he had a right to prefer her to the exclusion of other creditors. We think these are not debatable questions. See Dice v. Irvin, 110 Ind. 561, 11...
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