Petree v. Brotherton

• Decision Date: 27 October 1892
• Citation: 133 Ind. 692,32 N.E. 300
• Parties: PETREE et al. v. BROTHERTON.
• Court: Indiana Supreme Court

133 Ind. 692

32 N.E. 300

PETREE et al.

v.BROTHERTON.¹

Supreme Court of Indiana.

Oct. 27, 1892.

Appeal from circuit court, Bartholomew county; W. S. Swengel, Special Judge.

Action by John Brotherton against James A. Petree and others to set aside two mortgages executed by James A. Petree upon the ground that they were made to cheat, hinder, and delay creditors. Judgment for plaintiff. Defendants appeal. Reversed.Wm. F. Norton, for appellants. Hord & Emig, for appellee.

Miller, J.

This was an action by the appellee against the appellants to set aside two several mortgages executed by James A. Petree to Pryor M. Petree upon the ground that they were made to cheat, hinder, and delay creditors. The cause was tried by the court, who found and adjudged that they were executed in fraud of the creditors of James A. Petree. The complaint was voluminous, and in four paragraphs. A demurrer was sustained to the fourth paragraph and overruled to the other three. The first paragraph shows that on the 8th day of July, 1888, the defendant James A. Petree committed a violent assault and battery upon the plaintiff, and thereafter, on the 31st day of July, 1888, the plaintiff instituted a civil action therefor in the Bartholomew circuit court, and on the 1st day of January, 1889, recovered a judgment against him for $7.50 damages and $275.90 costs. That at the time of the commission of the assault, continuously since, and at this time, said James A. Petree was the owner of a tract of land, which is described, of the value of $5,000, upon which the plaintiff's judgment became and remains a lien. That on the ------ day of ------, 188-, one Pattorff instituted a civil action for damages for a violent assault and battery against said James A. Petree in the Bartholomew circuit court. The cause was, on application of the defendant, changed to the Brown circuit court. That afterwards Pattorff recovered a judgment against said Petree for the sum of $1,000. That the defendant made a motion for a new trial. His motion was sustained, and the cause stood for a second trial, and was pending at the time of the execution of the mortgage in this paragraph described. That said James A. Petree was also largely indebted to other persons, whose names are given, and was in embarrassed circumstances. That on the 26th day of October, 1887, said James A. Petree and his codefendants, Sarah F. Petree, who was and still is his wife, and Pryor M. Petree, who was his father, in contemplation of the future bankruptcy of said James, confederated and conspired together to cheat, hinder, delay, and defraud then and future creditors of said James, and to prevent the collection of any judgment, if recovered, in favor of Pattorff. That on said day, in pursuance of said design, said James A. Petree and wife, without any valuable, sufficient, or adequate consideration, made and executed to said Pryor M. Petree a mortgage on all his real estate to secure the payment of a promissory note purporting on its face to be for the sum of $5,000, a copy of which is filed with and made part of the paragraph of complaint. It is averred that said James A. Petree and Sarah F. Petree were not indebted to said Pryor M., but that the note was executed and accepted with intent to cheat, hinder, delay, and defraud the creditors of said James A. Petree, then existing, and to cheat, hinder, delay, and defraud all subsequent creditors of said James A. Petree. It is also averred that the plaintiff caused an execution to issue on his judgment to the sheriff, and the same was returned, “No property found to satisfy the same or any part thereof.” That said James H. Petree has no property subject to execution except the said real estate, and that the fraudulent mortgage is equal to its full value. The second paragraph seeks to avoid a chattel mortgage executed by James A. Petree to Pryor M. Petree on the 31st day of December, 1888, on all his personal property. The rendition...