Milburn v. Phillips

• Citation: 34 N.E. 983,136 Ind. 680
• Decision Date: 12 October 1893
• Docket Number: 16,330
• Parties: Milburn v. Phillips et al
• Court: Indiana Supreme Court

34 N.E. 983

136 Ind. 680

Milburn v. Phillips et al

No. 16,330

Supreme Court of Indiana

October 12, 1893

Reported at: 136 Ind. 680 at 697.

From the Boone Circuit Court.

Judgment reversed, at costs of appellee, with instructions to the circuit court to grant a new trial.

T. H Palmer, W. F. Palmer and A. E. Page, for appellant.

W. R Moore, D. W. Howe, C. F. Coffin, C. S. Wesner, S. M. Ralston and M. Keefe, for appellees.

OPINION

Dailey, J.

This cause was commenced in the Clinton Circuit Court, by appellant, against all of the appellees, except Joseph E. Milburn. He alleged that he was the owner, in fee, of the south half of the southeast quarter of section 25, in township 21 north, range 2 west, in said county.

The complaint sought to set aside a certain sheriff's certificate of sale, which appellees Phillips and Moore had against said premises. It sets out the judgment on which the sale was made, showing that it was against Joseph E. Milburn, and not, therefore, a lien on the land of the appellant, who was the plaintiff in said cause.

The complaint was answered, in the first instance, in three paragraphs. First, in general denial. The second, in substance, admits that on and before the 11th day of September, 1888, Joseph E. Milburn was the owner of said real estate, and conveyed the same, by deed, to Robert C. Milburn, but says that said deed was executed without any consideration, and in fraud of the creditors of Joseph, and that Phydella E. Phillips was, at the time, a creditor of the grantor. The third paragraph of answer is the same as the second, save it also alleges that Joseph E. Milburn is the father of the plaintiff, the appellant herein, and that said Robert and Joseph, with the intent to hinder, delay, and defraud the creditors of Joseph, conspired and confederated together, and caused the deed to be made to the former by the latter.

Both paragraphs aver that the father had not, after the conveyance was made, sufficient property subject to execution with which to pay his debts, and ever afterwards continued insolvent.

Appellees herein also filed a cross-complaint in two paragraphs, containing, in substance, the same allegations as are embraced in the second and third paragraphs of the answer, and setting out therein the judgment and sale of the real estate, and asking that the deed of date September 11, 1888, to Robert, by his father, be set aside, and the sale of the land, on defendant's judgment, sustained.

Joseph E. Milburn is made a party to answer the cross-complaint, and the Milburns answer by general denial.

Appellees, defendants below, having secured a sheriff's deed for said tract, pending the suit in the Clinton Circuit Court, filed a supplemental cross-complaint of ejectment against the Milburns, which was answered by general denial.

The cause was first tried in the Clinton Circuit Court, which resulted in a finding and judgment for the defendants, on their cross-complaint, and against appellant on his complaint.

The supplemental complaint being in ejectment, the appellant was granted, on his own motion, a new trial as a matter of right. Afterwards, on proper affidavit, the venue of the cause was changed to the Boone Circuit Court. In the latter court, the denial was withdrawn to plaintiff's complaint. The trial of the cause was submitted to a jury, and at the close of the evidence on the part of the defendants (appellees herein) the plaintiff filed his demurrer thereto, and the cause was withdrawn from the further consideration of the jury. The demurrer was, by the Boone Circuit Court, overruled, and the ruling of the court below thereon presents the only question for the consideration of the court.

The appellant has assigned as error:

First. That the court erred in overruling plaintiff's demurrer to defendants' evidence.

Second. That the court erred in rendering the judgment and decree which is rendered in this cause.

The real question presented for our consideration is: Did the court err in overruling the demurrer to the evidence?

Before presenting the material features of the evidence, it is proper and essential that we should advert to certain rules, the aid of which is invoked as a guide to courts in the consideration, by them, of the evidence in a cause where a demurrer to the evidence has been interposed.

In McLean, Admr., v. Equitable, etc., Assurance Society, 100 Ind. I27 (130 and 131), is a collation of authorities, and their correctness is borne out by an examination of the decisions to which reference is made.

The effect of the demurrer is to concede the truth of all the facts of which there is any evidence against the demurring party, and, if there is a conflict in the evidence, it prevents him from insisting upon any evidence in his favor as to the disputed facts. Willcuts v. Northwestern, etc., Life Ins. Co., 81 Ind. 300.

The demurrer admits all the facts which the evidence tends to prove, and all such inferences as can be drawn therefrom. Willcuts v. Northwestern, etc., Life Ins. Co., supra; Radcliff v. Radford, 96 Ind. 482.

It excludes from consideration the evidence of the party demurring. Ruddell v. Tyner, 87 Ind. 529.

Which is treated as withdrawn. Adams, Assignee, v. Slate, 87 Ind. 573.

As the evidence of his adversary alone is involved in the issue raised by the demurrer. Fritz v. Clark, 80 Ind. 591.

If, upon such evidence, with every reasonable inference which may be drawn therefrom, a jury might rightfully find against the party demurring, the demurrer should be overruled ( Hagenbuck v. McClaskey, 81 Ind. 577; Nordyke, etc., v. Van Sant, 99 Ind. 188), as the party demurring admits all the facts of which there is any evidence (Trimble v. Pollock, Admr., 77 Ind. 576), and consents that whatever reasonable inferences can be, shall be, drawn from the evidence against him. Ruff v. Ruff, 85 Ind. 431.

And the court is bound to take as true all the facts which the evidence tends to prove, and such inferences from them as the jury could have drawn, though the jury might not have drawn them. Ohio, etc., R. W. Co. v. Collarn, 73 Ind. 261.

But the court is not required, in considering the demurrer, to weigh or reconcile conflicting evidence, nor to consider that which favors the party demurring when it is in conflict with the other evidence against him. Indianapolis, etc., R. R. Co. v. McLin, 82 Ind. 435.

The demurrer waives objections to the admissibility of the evidence. Miller v. Porter, 71 Ind. 521.

And no advantage can be taken of any defect in the pleadings as a reason for sustaining the demurrer. Lindley v. Kelley, 42 Ind. 294.

As sustaining a demurrer to the evidence works a final disposition of the case, the court does not err in overruling such a demurrer whenever there is testimony which, although weak and inconclusive, fairly tends to prove every material fact, and is sufficient to justify a court in overruling a motion to set aside a verdict based thereon. Kansas Pacific R. W. Co. v. Couse, 17 Kan. 571.

And if, from the evidence, a jury might infer that the plaintiff's action should be sustained, the demurrer should be overruled, and the plaintiff should have judgment. Wright, Admr., v. Julian, 97 Ind. 109.

In line with these authorities, and in addition thereto, see Palmer v. Chicago, etc., R. R. Co., 112 Ind. 250, 14 N.E. 70; Evansville, etc., R. R. Co. v. Marohn, 6 Ind.App. 646, 34 N.E. 27.

It is the law that a voluntary conveyance is not, for that reason alone, fraudulent, for it is the right of every person owning property to dispose of it at any price he may see fit, or donate it to others, provided, always, if, at the time of the conveyance, he retain sufficient assets to pay all existing liabilities; and when a voluntary conveyance is made by one largely indebted, in comparison to his resources, the transaction, in itself, raises a presumption of constructive fraud, no matter what the motive which induces it; the deed will be void as to creditors. 1 Story Eq., sections 353 and 355; Warville on Vendors, 623.

A person can not give away any of his property to the injury of his creditors. Sherman v. Hogland, 73 Ind. 472; Barkley v. Tapp, 87 Ind. 25; Eiler v. Crull, 112 Ind. 318, 14 N.E. 79.

One great circumstance which should always be attended to in these transactions is, whether the person was indebted at the time he made his conveyance, and, if he was, it is a strong badge of fraud. Paine v. Doe on Demise, 7 Blackf. 485.

If the effect is to withdraw any portion of the property, so that there does not remain sufficient to enable creditors to pay themselves, the conveyance is clearly within the statute. A transfer of all the donor's property is for this reason fraudulent. A universal donee is bound to pay the debts of the donor, existing at the time of the donation, or abandon the property thus given. Bump on Fraud. Conv. 292.

When no consideration is paid, it is not necessary that the grantee should have notice of the grantor's fraudulent intent. Barkley v. Tapp, supra; Spaulding v. Blythe, 73 Ind. 93.

Where a vendee participates in the fraud of the vendor, to delay, hinder, or defraud the creditors of such vendor, even though a full consideration has been paid for the property, the conveyance will be set aside. Gardinier v. Otis, 13 Wis. 514; Briscoe v. Clarke, 1 Rand. 213; Tootle v. Dunn, 6 Neb. 93.

This is a well recognized principle of the law, and the courts have held that the purchaser is to be charged with notice of the character of the transaction, when he is acquainted with the circumstances sufficiently to convince the court or jury that he knew the facts. Green v. Tantum, 19 N.J. Eq. 105.

Or, if he has a knowledge of such facts as would excite the suspicion of an ordinarily...