Pierce v. Hower
| Decision Date | 26 November 1895 |
| Docket Number | 17,583 |
| Parties | Pierce et al. v. Hower et al |
| Court | Indiana Supreme Court |
From the Wells Circuit Court.
The judgment is affirmed.
Sharp & Sturgis, for appellants.
J. K Rinehart and M. W. Walbert, for appellees.
This was an action by the appellees to set aside as fraudulent a conveyance of real estate from the appellant, John S. Pierce to his wife, the appellant, Sarah M. Pierce. The court found the conveyance fraudulent as to the undivided four-fifths of the land, and judgment was entered accordingly.
It is contended that each paragraph of the complaint is defective for want of an allegation that, at the time of the bringing of the action, the appellant John S. Pierce did not have sufficient property, subject to execution, to pay appellees' claim. The allegation made is, "That at the time of said conveyance, John S. Pierce had no property subject to execution, nor has he had, from the time of said conveyance until now, for the payment of said judgment." The allegation might, perhaps, have been more definite; but we think that the meaning is sufficiently clear, that John S. Pierce had not, either at the time of the conveyance, or at any time since, or at the beginning of the action, sufficient property subject to execution to pay the debt. The complaint may have been subject to a motion to make more specific, but after the finding of the necessary facts it may be considered sufficient in this particular.
It is further contended that the second paragraph is insufficient for want of an allegation that the conveyance was made from the husband to the wife without consideration. The paragraph however, does allege that, at the time of the conveyance, Sarah M. Pierce knew of the fact of her husband's indebtedness, and of his purpose to defraud his creditors, and that she received the conveyance with such knowledge and with the purpose to aid him in the perpetration of such fraud. This was sufficient. Roberts v. Farmers', etc., Bank, 136 Ind. 154, 36 N.E. 128, and cases cited.
It is also claimed that the court erred in its conclusions of law on the facts found.
From the special finding it appears, that the appellants are husband and wife; that the land in question was purchased with the wife's money, with the understanding by her that the deed should be taken in her name, but that it was taken in her husband's name, without her knowledge or consent that a cash payment of one-fifth of the purchase-price was paid by her; that the remaining part of the purchase-price was evidenced by the promissory notes of her husband, secured by mortgage on the real estate, the husband alone signing the notes and mortgage; that all the purchase-price notes were paid by the wife out of her own money, but before making such payments she knew that the deed had been taken in her husband's name; that she always claimed to be the owner of the land, and frequently asked her husband to deed the same to her, but that the deed remained on record in the husband's name, from August 11, 1875, to January 20, 1894, at which last date the deed here sought to be set aside was made from the husband to the wife; that on October 1, 1881, John S. Pierce borrowed two hundred dollars from the school fund, giving as security his mortgage on said land, in which mortgage his wife joined, which mortgage debt was renewed by appellants on November 30, 1891; that in the spring and summer of 1893, at various dates named, John S. Pierce became indebted in the several sums, and to the persons, as the same are set out in the findings, representing to each of said persons that he was the owner in his own right of the said real estate; that none of said persons had any knowledge that his wife had or claimed any interest therein; that in May, 1893, the appellees, Godfrey and Frederick Ashbaucher, bought one of the notes, embracing a part of said indebtedness, for two hundred and thirty-six dollars, said note being signed by the appellant, John S. Pierce, and his brother as principals, and by the appellee, Benjamin F. Hower, as surety; that at the time of the purchase of said note, John S. Pierce informed said Ashbauchers that he was the owner of said real estate in his own right, and they had no knowledge that his wife claimed any interest therein; that on March 12th, 1894, Ashbauchers recovered judgment on said note against John S. Pierce and his brother, as principals, and the appellee, Hower, as surety, it being provided in the decree that the property of the Pierces should be exhausted...
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