Robinson v. Hathaway

• Decision Date: 16 June 1898
• Citation: 150 Ind. 679,50 N.E. 883
• Parties: ROBINSON et al. v. HATHAWAY et al.
• Court: Indiana Supreme Court

150 Ind. 679

50 N.E. 883

ROBINSON et al.

v.HATHAWAY et al.

Supreme Court of Indiana.

June 16, 1898.

Appeal from circuit court, Whitley county; Joseph W. Adair, Judge.

Action by Robinson & Co. against Delmar C. Hathaway and another. There was a judgment for defendants, and plaintiffs appealed. Affirmed.

Marshall, McNagney & Clungston, for appellants. Andrew A. Adams, for appellees.

MONKS, J.

Appellant brought this action to set aside a conveyance of real estate made by appellee Hathaway to his co-appellee, Nancy Graham, as fraudulent, and subject the same to the payment of a judgment recovered by appellant against said Hathaway and another. The court made a special finding of the facts, and stated a conclusion of law thereon in favor of appellees, and, over appellant's motion for a new trial, rendered judgment against appellant. Appellant filed a motion to modify the judgment, which was overruled. The assignment of errors calls in question the conclusion of law and the action of the court in overruling the motion for a new trial, and the motion to modify the judgment. Appellant having failed to discuss the error assigned as to the conclusion of law, the same is waived. Railway Co. v. Hunter, 128 Ind. 213, 221, 27 N. E. 477;Williams v. Potter, 72 Ind. 355, 357;Carper v. Kitt, 71 Ind. 24, 26; Boyd v. Fitch, Id. 306, 313.

The finding of the court upon the question of consideration is substantially as follows: About the month of February, 1884, appellee Delmar H. Hathaway came to the home of appellee Nancy Graham, and has ever since resided there. They were in no way related to each other, and, at the time he was received into her home, there was no contract or agreement with reference to the charge to be made for his keeping; and the services rendered by her in boarding, washing for, mending, making his clothes, and furnishing him with whatever was needful for his comfort and convenience, were worth $100 per year. Soon after he reached the age of 21 years, he recognized and acknowledged his debt to her. In February, 1884, about the time she commenced to care for said Hathaway, he received an estate from his grandmother, which, when he arrived at 21 years of age, February 5, 1893, amounted to $1,400, which was paid over to him by his guardian, James Arnold, on February 10, 1893. On March 23, 1893, he purchased the real estate in controversy, for which he gave his note for $800, secured by a mortgage on the premises, and paid the balance of the purchase money in cash. On November 18, 1895, said appellee Hathaway was justly in debt to said Nancy Graham in the sum of $1,200, for care and maintenance for the 12 years immediately preceding said date; and on said day he conveyed the real estate in controversy to her, in payment of said indebtedness, she assuming the payment of the mortgage thereon, which amounted to about $800; and she has paid on said mortgage $210. Said real estate was worth at the time of said conveyance $1,700, and the consideration she paid for said real estate was full, valuable, and adequate, and said conveyance was not executed or received to defraud appellant, but was made to pay a just debt. Appellant insists that the said finding, as to the consideration for the conveyance of said real estate, was not sustained by the evidence, and for that reason the court erred in overruling the motion for a new trial. In determining whether said finding, as to the consideration paid, was sustained by the evidence, we can only consider such evidence as tends to sustain the finding, disregarding any evidence to the contrary, for the reason that if there is evidence sustaining the same, even though there may be evidence to the contrary, we cannot weigh it or determine the credibility of the witnesses. There was evidence, in substance, that, when Delmar H. Hathaway was about 11 years old, his mother died, and his father, William H. Hathaway, intending to break up housekeeping, requested Mrs. Graham to keep him a while, until he (the father) was settled again. William H. Hathaway afterwards married, but never came after the boy. There was no agreement with the father to keep the boy, and she never demanded any pay from him for keeping him, but expected to demand it of the boy when he was of age. Before Delmar H. Hathaway received the $1,400 from his guardian, he spoke to Mrs. Graham about paying her for keeping him, but no amount was mentioned at that time. They talked about the matter at different times, and she wanted her money. A short time before the conveyance was made, he agreed to pay her...