Slagel v. Hoover

• Decision Date: 30 March 1894
• Citation: 137 Ind. 314,36 N.E. 1099
• Parties: SLAGEL v. HOOVER et al.
• Court: Indiana Supreme Court

137 Ind. 314

36 N.E. 1099

SLAGEL

v.HOOVER et al.

Supreme Court of Indiana.

March 30, 1894.

Appeal from circuit court, Carroll county; A. W. Reynolds, Judge.

Action by Abel Hoover and others against William H. Slagel, Sarah G. Slagel, and Conrad Slagel to set aside a conveyance. Plaintiffs obtained a decree. Defendant William H. Slagel appeals. Affirmed.M. A. Ryan and Pollard & Pollard, for appellant. Dykeman, Wilson & Taber, for appellees.

HOWARD, C. J.

This was an action brought by the appellees against the appellant and Sarah G. and Conrad Slagel, his father and mother, to recover a judgment against the latter, and also to set aside the conveyance of the real estate described in the complaint made by them to appellant on the ground of fraud against appellees. The complaint was in two paragraphs, to which the demurrers were overruled. On the second paragraph of the complaint there was a finding against the appellant, and against Sarah G. and Conrad Slagel, that the conveyance from the latter to appellant was fraudulent and void as to appellees, and that the real estate so conveyed should be subjected to the debt found due them. A motion to modify the finding, so as to show that the conveyance was not fraudulent as to appellant, was overruled, as was also his motion for a new trial, and a decree was entered in accordance with the finding.

The sufficiency of the complaint, and the correctness of the court's ruling in opposition to the motion for a new trial, are questioned by the appellant. Counsel say that the complaint is bad, for the reason that it is not alleged that the property conveyed was at the time subject to execution for the debt of Sarah G. and Conrad Slagel. The allegations of the complaint, in this regard, are “that, at the time of the execution of said conveyance by said Sarah G. Slagel and Conrad Slagel to said William H. Slagel, said Sarah G. Slagel and Conrad Slagel, or either of them, had not, nor had they or either of them since had, nor have they or either of them now, at this time, any other property subject to execution with which to pay her debts, or the debts of either of them, or any part thereof, but that said Sarah G. Slagel and Conrad Slagel were each at the time of the making of said conveyance to their son, and have each ever since been, and are now each wholly insolvent.” This is a very particular statement of the necessary allegations, and perhaps more detailed than necessary. What is required is that it should be alleged that at the time of the conveyance, and at the time of bringing the suit, the debtor had no other property than that conveyed subject to execution, with which to pay the debt. That the property conveyed is itself subject to execution need not be more particularly alleged in the complaint. If it is not so subject to execution, that fact may be pleaded by the debtor. No such plea was made in this case. The cases cited by counsel we do not think are in point. Like allegations to those in this case have been held sufficient. Bruker v. Kelsey, 72 Ind. 51;Sherman v. Hogland, 73 Ind. 472;Taylor v. Johnson, 113 Ind. 164, 15 N. E. 238.

The grounds stated in the motion for a new trial are, in substance, that the finding is not supported by the evidence, and is contrary to law. It was admitted on the trial by the appellant and his codefendants “that, at the time of the conveyance, Sarah G. Slagel and Conrad Slagel had neither of them any other property subject to execution, and that they had none since the commencement of this suit.” But counsel for appellant insist that this admission, and the other evidence, do not show that the property in question was subject to execution for the debts of Sarah G. Slagel. To arrive at this conclusion, counsel say that the undisputed testimony...