Love v. Mikals
| Decision Date | 03 December 1858 |
| Citation | 11 Ind. 187 |
| Parties | Love and Others v. Mikals, Administrator |
| Court | Indiana Supreme Court |
From the Bartholomew Circuit Court.
The judgment is affirmed with costs.
N. T Hauser and R. Hill, for appellants.
W. F Pidgeon, for appellee.
Philip Mikals, administrator of the estate of Jacob Fislar deceased, filed a complaint in the Circuit Court, alleging that the personal estate of the intestate, amounting to about 150 dollars, was taken and retained by his widow; that, on the 16th of May, 1850, Fislar, then in life, became indebted to Mikals, in his, Mikals' own right, 200 dollars, payable at twelve months, and that Fislar, when he became so indebted, was the owner in fee, and in possession of lot number 171, in Columbus, which was, by him and his wife, on the 13th day of January, 1851, with intent to defraud Mikals, fraudulently conveyed to Braxton Love, without any consideration whatever; that Love never took possession of the lot, nor did he ever exercise any control over it; but the possession and control thereof remained in Fislar until his death, and since that event, has been occupied by his widow. It is averred that Mikals, as administrator of said estate, on the 24th of January, 1853, instituted proceedings in the Bartholomew Common Pleas, to subject the lot in question to the payment of debts outstanding against the intestate's estate. The relief prayed is, that the conveyance to Love be decreed fraudulent as to Mikals and others, creditors of said estate, and, as to them, be annulled.
The defendants demurred to the complaint, but their demurrer was overruled. Issues of fact were submitted to the Court, who found that Jacob Fislar, in his lifetime, and on the 13th of January, 1851, transferred by deed, to Braxton Love, lot number 171, in Columbus, with intent to defraud his creditors. And the Court, having refused a new trial, adjudged and decreed that the conveyance for said lot to said Love, is fraudulent as to Fislar's creditors, and that the same be, and is set aside. The exceptions taken by the defendants, as they appear in the record, relate alone to the action of the Circuit Court, in overruling the demurrer, and in the refusal to grant a new trial.
The complaint is alleged to be defective on three grounds: 1. Because it fails to show that the plaintiff's claim had been reduced to a judgment. 2. The nature of the indebtedness of the estate, whether by note or otherwise, is not stated. 3. It is not averred that plaintiff, as administrator, was authorized, by order of the Common Pleas, to sell the lot in question, for the payment of the intestate's debts.
The books say it is a general doctrine, that to reach the equitable interest of the debtor in real estate, by suit in chancery, the creditor should first obtain a judgment at law but to this rule there are exceptions, and one is, where the debtor is deceased. Kipper v. Glancey, 2 Blackf. 356.--O'Brien v. Coulter, id. 421.--West v. M'Carty, 4 id. 244. But it is insisted that the law, as it now stands, does not allow the exception, because as effective means now exist for establishing a claim against a decedent's estate, as for obtaining a judgment against a living debtor. This reasoning, in our opinion, possesses no force. Anterior to the present code, the means of establishing such claim were, in effect, the same as under the rules of procedure now in force. R. S. 1843, p. 521, et seq. Indeed, the revision of 1852 seems to allow a creditor to proceed, in the same action, to establish his demand, and set aside a conveyance executed with intent to defeat its collection. It says the plaintiff may unite several...
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