Schaeffer v. Fithian

• Decision Date: 12 December 1861
• Citation: 17 Ind. 463
• Parties: Schaeffer and Others v. Fithian and Others
• Court: Indiana Supreme Court

17 Ind. 463

Schaeffer and Others v. Fithian and Others

Supreme Court of Indiana

December 12, 1861

APPEAL from the Randolph Circuit Court.

The judgment is reversed, with costs. Cause remanded.

Thos M. Brown and John J. Cheney, for the appellants.

James G. Jones and W. A. Peele, for the appellees.

OPINION

Worden J.

This was an action by the appellees against the appellants. The complaint alleges, in substance, that the defendants Valentine and David W. Schoeffer, who were partners in business, in March, 1858, became indebted to the plaintiffs, who were also partners in business, in the sum of $ 879, for goods sold and delivered. That in February, 1859, the plaintiffs recovered judgment against said Valentine and David W. for the amount of said indebtedness, in the Superior Court of Montgomery county, in the State of Ohio; that an execution issued upon the judgment has been returned unsatisfied, and that the defendants have no property in the State of Ohio subject to execution. That on November 13, 1858, the said Valentine and David W. Schoeffer, who then held and owned, as such partners, a large amount of dry goods, of the value of $ 10,000, traded and exchanged said stock of dry goods to one Handy D. Bowen, and in part consideration therefor, received from Bowen certain real estate, situated in Randolph county, Indiana, which real estate is described in the complaint; that the land was received and estimated in the exchange as of the value of $ 2,587, and was conveyed by deed from Bowen to Valentine and David W. Schoeffer. That said Valentine and David W., for the purpose of defrauding their creditors, and particularly the plaintiffs, on November 13, 1858, returned and delivered up said deed of conveyance to said Bowen, and procured Bowen to make a deed for the same land to Mary E. Schoeffer, wife of Valentine, and Frances Schoeffer, wife of David W., without any consideration from said Mary E. and Frances, or either of them, who continue to hold the apparent title, in fraud of the rights of the plaintiffs.

Prayer for judgment against Valentine and David W., for the amount of the judgment recovered in Ohio, with costs and interest, and that the conveyance to Mary E. and Frances be set aside and held for naught, and that the land be sold to satisfy the debt.

The defendants all appeared and answered.

Mary E., in conjunction with her husband, answered, admitting the recovery of the judgment, as alleged, and the want of property in Ohio to satisfy it, and the conveyance of the land by Bowen to her and said Frances, but denying all fraud, and averring that the conveyance was made in good faith and for a valuable consideration. That in regard to the interest of Mary E. in the premises, the facts are, that in October, 1853, the said Valentine received from her estate the sum of $ 900, money belonging to her, and loaned the same to one Thomas Schoeffer, taking a note for the same, payable to said Mary E.; that afterward, said Valentine received the money from said Thomas, and invested the same with one Jonathan Wike, as the money of his said wife; that afterward, in 1856, said Valentine again received said money, and invested the same, as the money of his said wife, in goods for the said firm of V. & D. W. Schoeffer; that said money so remained in said firm, charged to said Valentine as the separate fund of his wife, until the sale by said firm to Bowen; that during all this time the said sum of money was invested and kept as the separate property of said Mary E., and with the express agreement and understanding that the same should be accounted for by said firm to said Mary E.; that in pursuance of said agreement, the said firm of V. & D. W. Schoeffer, at the time of the sale of their goods to Bowen, caused the real estate mentioned to be conveyed to said Mary E. and Frances Schoeffer, jointly; that the conveyance was made at the request of Mary E., and was by her received in full payment of the debt due from the said firm to her; that it was so made and received by her in good faith, and without any design to defraud the creditors of said firm; and that the execution of any deed by Bowen to Valentine and David W. Schoeffer, prior to the conveyance to Mary E. and Frances, was entirely unknown to them.

Frances Schoeffer, in conjunction with her husband, answered, admitting the recovery of the judgment, &c., as in the answer of Mary E., but denying all fraud, and all knowledge of a previous conveyance by Bowen to Valentine and David W., and averring that the sale and conveyance to her and Mary E. was made in good faith, and for a valuable consideration; and alleging the facts to be, so far as her interests are concerned, that in 1851, and soon after her marriage with said David W., Jacob Browning, her father, advanced to her and her said husband the sum of $ 2,500, to be used by them until demanded, for which they gave him their promissory note, payable on demand; that on February 23, 1858, they paid said Browning $ 1,000, by conveying to him a lot in Dayton, and took up the first note, and executed to Browning another for $ 1,500, payable on demand; that on November 1, 1858, and at the time of the exchange of goods with Bowen, it was agreed between said David W. and Browning, that the land aforesaid should be conveyed to said Frances and Mary E. jointly, and that said conveyance, being to his daughter, should be a payment of said $ 1,500, and that the same to that extent should be held and regarded as an advancement to said Frances. That in pursuance of said arrangement and agreement, said lands were so conveyed, and by means thereof the $ 1,500 note was paid and discharged. That the execution of any deed from Bowen to Valentine and David W. was entirely unknown to said Frances, Mary E., or to said Browning.

A demurrer was sustained to each of these answers, and the defendants excepted. Judgment, that the plaintiffs recover their debt of the defendants Valentine and David W. Schoeffer, and that the conveyance from Bowen to Mary E. and Frances be set aside, as to the creditors of said Valentine and David W., and that the land be sold, &c.

The only question presented by the record is, whether the answers of Mary E. and Frances are sufficient.

We are of opinion that the answers were good, and that the demurrers thereto should have been overruled.

The money received by the husband of Mary E. Schoeffer was not received by virtue of his marital rights, as his own but as hers, and for her benefit, and he became her debtor for the amount of it, unless he was entitled to receive the money as his own in virtue of their marriage. Whether, in case the husband was entitled to the money by virtue of the marriage, the receipt of it by him, not in his own right, but in hers, and for her benefit, made the money his own, leaving no...