De Ruiter v. De Ruiter

• Decision Date: 26 November 1901
• Docket Number: 3,800
• Citation: 62 N.E. 100,28 Ind.App. 9
• Parties: DE RUITER ET AL. v. DE RUITER
• Court: Indiana Appellate Court

62 N.E. 100

28 Ind.App. 9

DE RUITER ET AL. v. DE RUITER

No. 3,800

Court of Appeals of Indiana

November 26, 1901

From Marion Superior Court; J. M. Leathers, Judge.

Action by Laura E. De Ruiter against Derk De Ruiter for divorce and alimony and to set aside a conveyance of real estate. From a judgment for plaintiff, defendant appeals.

Affirmed.

R. O Hawkins and H. E. Smith, for appellants.

W. N Harding and A. R. Hovey, for appellee.

OPINION

WILEY, J.

Appellee was plaintiff below, and prosecuted her action against the appellant Derk De Ruiter for divorce, and to recover alimony. Appellants Vanderwerf and Vanderwerf are husband and wife, and were made parties for the reason that it was charged in the amended complaint that appellant De Ruiter had conveyed to appellant Eva G. Vanderwerf, who was his daughter, all of his real estate, and that the purpose of said conveyance was to defraud appellee, etc. It was therefore sought, not only to procure a decree of divorce and secure alimony in favor of appellee, but also to set aside such conveyance as fraudulent. The amended complaint is in one paragraph, and the ground for divorce relied upon rests upon cruel and inhuman treatment. A supplemental complaint was filed, charging abandonment, but the record shows that the finding and decree rest upon the amended complaint, and no question is presented for decision arising under the supplemental complaint. The appellants each answered by denial. The court found for the appellee that she was entitled to a divorce; also that she was entitled to $ 4,000 alimony, and $ 500 for her attorney's fees. The court also found against all the appellants, that the conveyance of real estate to appellant Eva G. Vanderwerf, as described in the complaint, was fraudulent and void, and should be set aside, and that said real estate be subjected to the payment of the alimony allowed appellee, the attorney's fees and costs. Judgment followed in harmony with the finding. Appellant Eva G. Vanderwerf moved separately to modify the judgment, by striking out and eliminating therefrom all that part of it affecting the real estate which her co-appellant had caused to be conveyed to her. Appellant De Ruiter also moved to modify the judgment in certain specified particulars. Each of these motions was overruled, and the motions and the rulings thereon are brought into the record by bill of exceptions. Appellants, Derk De Ruiter and Eva G. Vanderwerf, each filed separate motions for a new trial, which were respectively overruled. Neither of appellants demurred to the amended complaint.

By his separate assignment of error, appellant De Ruiter attacks, for the first time, the sufficiency of the amended complaint, and brings in review the action of the court in overruling, respectively, his motion to modify the judgment and for a new trial. The assignment of errors of appellants Vanderwerf and Vanderwerf is joint and is as follows: (1) The amended complaint does not state facts sufficient to constitute a cause of action against them; (2) that "the court erred in overruling the appellant Eva G. Vanderwerf's motion to modify and correct the decree and judgment"; (3) that "the court erred in overruling the appellant Eva G. Vanderwerf's motion for a new trial".

Counsel for appellant have not discussed the assignment of errors in their order, but have taken up the overruling of the motions to modify, and for a new trial, in the order stated. If the amended complaint does not state a cause of action against either of the appellants, as counsel assert, it seems to us that that question should be first disposed of, for if it does not, it would be wholly unnecessary to decide the remaining questions.

No argument is directed against the complaint on the ground that it does not state sufficient facts to constitute a cause of action against appellant De Ruiter for divorce, but that it does not state facts sufficient to warrant the setting aside of the conveyances of real estate to appellant Eva G. Vanderwerf as fraudulent. The objection urged to the complaint is that at the time of the conveyances it is not alleged that appellant De Ruiter was insolvent, and also that he was insolvent when the present action was commenced. The averments of the complaint upon this point are brief and we quote them in full, viz.: "That said Derk De Ruiter was on the date last aforesaid [referring to the date of the conveyance] largely indebted to various persons in various sums, and since has become and is now insolvent, and at the time said conveyances were made he had not, nor has he since had, nor has he now, sufficient other property, subject to execution, to pay his debts, or any judgment that may be rendered plaintiff for alimony herein, or any part hereof. That plaintiff is informed that defendant Derk De Ruiter is possessed of a large amount of money and bonds which he secretes, but she is unable to give the particular facts in relation thereto." If we are to regard this latter averment equivalent to an averment that appellant De Ruiter, at the time this action was commenced, was possessed of a "large sum of money and bonds," etc., then the two averments are in irreconcilable conflict, and, this being true, the pleading must be construed most strongly against the pleader, and the latter averment, being specific, must control the former, which is general. Ivens v. Cincinnati, etc., R. Co., 103 Ind. 27, 2 N.E. 134; Houck v. Graham, 106 Ind. 195, 55 Am. Rep. 727, 6 N.E. 594; City of Wabash v. Carver, 129 Ind. 552, 29 N.E. 25. Such a construction would leave the complaint without the essential averments that at the time of the conveyance, ever since, and when the action to set it aside was commenced, De Ruiter was insolvent, etc. A person possessed of a large amount of money and bonds can hardly be said to be insolvent.

The statement in the complaint, that he was possessed of a large sum of money and bonds, is somewhat indefinite, and is modified by the further statement that such money and bonds are secreted. If the money was in a bank it was not subject to execution, and if either the money or bonds were secreted they could not be levied upon. The point is that the party who is charged with having fraudulently conveyed his property did not retain sufficient property, and did not have, at the time the action is commenced to set it aside, sufficient property, subject to execution, to pay his debts, etc. So, money, whether it be secreted or deposited in bank, is not subject to levy and execution. See, McMillan v. Richards, 9 Cal. 365; Scott v. Smith, 2 Kan. 438; Moorman v. Quick, 20 Ind. 67; Carroll v. Cone, 40 Barb. 220. We are inclined to the view that the allegation in the complaint that appellant De Ruiter had a large amount of money and bonds is so indefinite and uncertain that it cannot be regarded as contradicting the essential averments just preceding it, and hence the complaint upon this point must be held good as against an original attack in this court.

Before taking up for decision the questions raised by the motions to modify and for a new trial, it is important to give a brief history of the case as disclosed by the record. August 15 1896, appellee instituted a suit in the Marion Superior Court against appellant De Ruiter, to obtain a divorce and for alimony. To this action he appeared and filed a cross-complaint. That said cause was finally determined January 11, 1897, by a finding and judgment against appellee on her complaint, and against appellant on his cross-complaint. Appellee, at the time of her marriage, was the owner of some real estate of the value of about $ 2,500, upon which there was some encumbrance. Appellant De Ruiter owned in his own name real estate, the value of which, above the encumbrance, was over $ 20,000. Appellee also owned some personal property--stock in a building association--of the value of $ 400 or $ 500. After the first action for divorce was commenced, the two parties lived separate and apart. Some time in February, 1897, after the termination of the former suit, appellant went to appellee's home, and made overtures for a reconciliation, and visited her occasionally thereafter. It is the theory of appellee that appellant De Ruiter, in making such overtures for reconciliation, was not acting in good faith, but that he thereby intended to deceive her, for the purpose of getting her to deed to him her real estate, and to get her to join him in conveying his real estate. Also that appellant De Ruiter and appellant Eva G. Vanderwerf entered into a conspiracy, by which she was induced by deceit and misrepresentation to execute to one Trussler a power of attorney, authorizing him to execute and deliver deeds for her husband and herself to any and all of his real estate, and that in furtherance of said conspiracy, all of the real estate owned by De Ruiter was conveyed to Eva G. Vanderwerf by said Trussler as attorney in fact, and that though said real estate was of the value of over $ 20,000, the same was conveyed to said Eva G. for an expressed consideration of $ 4. It is charged in the complaint, and there is evidence to support it, that appellant De Ruiter procured appellee to convey to appellant Vanderwerf her real estate, and that such conveyance was procured to cheat and defraud her out of it. Appellee owned stock in a building and loan association, and it was charged that by fraud and misrepresentation he procured such stock to be transferred to him, for the purpose of defrauding her out of it. There is some evidence to sustain this allegation. It was charged, as above stated, that appellants entered into a conspiracy, for the purpose of procuring appellee to join in a conveyance of all of her husband's real estate, for the purpose of...