Lewis v. Stanley

• Decision Date: 23 September 1897
• Docket Number: 17,701
• Citation: 47 N.E. 677,148 Ind. 351
• Parties: Lewis et al. v. Stanley et al
• Court: Indiana Supreme Court

47 N.E. 677

148 Ind. 351

Lewis et al. v. Stanley et al

No. 17,701

Supreme Court of Indiana

September 23, 1897

Original Opinion of January 5, 1897, Reported at: 148 Ind 351.

OPINION

Howard, J.

It was alleged in the complaint in this case that, for the purpose of defrauding appellants and other creditors, appellee and her husband had, through a third person, caused certain real estate held by her husband to be conveyed to the husband and wife to be held by them by entireties. The prayer was that the deeds for such conveyance be set aside as fraudulent and void as to said creditors. To this complaint the appellee filed a general denial. She also filed a special answer setting out the facts as to how the deed to the land had originally been made to her husband, as stated in the principal opinion. It is further averred in the special answer that, at the time the land was originally deeded to her husband, and the advancement made to her by her father it was her intention and that of her husband "to have the said title made to them jointly," and that "the same would have been so made if they or either of them had been present when said deed was written;" also, that she and her husband always intended to have said title made to them as husband and wife, and that the conveyances claimed in the complaint to have been fraudulent were made to carry out such intention, and without any fraudulent design on the part of either. To this paragraph of answer the court sustained a demurrer. Appellee also filed a cross-complaint claiming to be the owner in fee simple of the land in controversy, and asking that her title be quieted. After finding the facts, the court, as its first conclusion of law, found that the deeds in question "are fraudulent and void as against the creditors of said Henry L. Stanley, deceased, and that the same should be set aside as to said claims." It does seem to us that this was a complete disposition of all the issues raised in the pleadings. But to this conclusion of law the appellee took no exception and made no objection. If, however, the position now taken by appellee were tenable, namely, that the husband from the beginning had held the land jointly with his wife and in trust for her, such conclusion of law would be unwarranted. By failing to except to the conclusion of law when made, we think, appellee precluded herself from making the contention here urged.

But appellee's whole argument rests upon an unsound basis. It is not true that appellee ever paid anything for the land and consequently the authorities cited of cases where a wife had paid for land taken in the name of her husband are not here in point. The money was paid by her father, as he himself testified on the trial. It is true that the...