Searles v. Little, Assignee
| Decision Date | 03 November 1899 |
| Docket Number | 18,677 |
| Citation | 55 N.E. 93,153 Ind. 432 |
| Parties | Searles et al. v. Little, Assignee, Etc |
| Court | Indiana Supreme Court |
From the Delaware Circuit Court.
Affirmed.
J. W Ryan and W. A. Thompson, for appellants.
R. S Gregory, A. C. Silverburg, O. J. Lotz and G. H. Koons, for appellee.
OPINION
The only questions to be determined on this appeal are the sufficiency of the complaint and whether the appellants were entitled to a new trial as of right.
The complaint alleges in substance, that on the 21st day of August, 1889, Ezra Searles, one of the appellants, made a deed of voluntary assignment in proper form to the appellee for the benefit of all his creditors, purporting to convey all of his property, real and personal; that said deed was duly recorded and that a copy of the same together with a schedule of his property was filed in the office of the clerk of said county; that said appellee accepted the said trust and was duly qualified; that said trustee was authorized, by the court in which said proceeding was pending, to institute an action against the appellants Ezra Searles, and Mary E. Searles his wife, to set aside certain conveyances of real estate made and procured by the said Ezra Searles, and alleged to be fraudulent. The complaint then avers that on the 19th day of August, 1889, the said Ezra Searles was justly indebted to divers persons in large amounts; that said Searles was, on said day, the owner of certain lots and lands situated in Delaware county, Indiana, and particularly described in the complaint, of the aggregate value of $ 9,000; that on said day, the said Ezra and Mary E. Searles, with the fraudulent intent to cheat, hinder, and delay the creditors of the said Ezra, and for the purpose of placing said real estate beyond the reach of said creditors, without any consideration, executed two deeds of general warranty, conveying said real estate to one Otis Parsons, a brother of the appellant Mary E. Searles, who, with like fraudulent intent, at the instance of the appellants, without consideration, conveyed one part of said real estate to the said Ezra Searles and Mary E. Searles, his wife, jointly, and the remainder thereof to the said Mary E. Searles. That the property so conveyed was by said Ezra Searles omitted from his deed of assignment, and the schedule filed therewith; and that, at the time of the execution of the said deeds, the said Ezra Searles had not, nor has he since had, other property sufficient to pay his debts. Prayer, that the conveyances so made be set aside, and that the real estate be declared subject to sale to pay the debts of the said Ezra Searles.
The complaint contains a great deal of surplusage, but, omitting its prolix and unnecessary averments, it sufficiently charges the ownership of the lands by Ezra Searles; the fraudulent transfer of the same; his subsequent voluntary assignment and the appointment and qualification of the appellee as trustee; the existence of a large amount of indebtedness at the time of the execution of the deeds which remains unpaid; and that Ezra Searles had not, at the time of the transfer or afterwards, sufficient other property to pay his just debts. No other allegations were necessary, and the action was properly treated as a suit to set aside a fraudulent conveyance of lands. The averments in the complaint as to the vesting of the title to the lands so conveyed in the trustee and that the deeds executed by Searles and wife, and Parsons, were clouds on the title of the trustee, may be rejected as immaterial. The objection that the deed of assignment was not filed as an exhibit cannot be presented for the first time on appeal under the assignment that the complaint does not state facts sufficient to constitute a cause of action. Kenner v. Whitelock, Rec., 152 Ind. 635, 53...
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