Smith v. Blair
| Decision Date | 28 January 1893 |
| Docket Number | 15,854 |
| Parties | Smith v. Blair et al |
| Court | Indiana Supreme Court |
From the DeKalb Circuit Court.
Judgment affirmed.
C. A O. McClellan and R. M. McBride, for appellant.
W. L Penfield, for appellees.
The appellee was a creditor of Norman Smith, the husband of the appellant, Julietta Smith. The appellant Julietta purchased a farm upon which there were judgment liens that she assumed to pay. Norman Smith, in fraud of his creditors, and for the purpose of defrauding them, and particularly the appellee colluded with his wife, the appellant, and furnished her $ 800 with which to pay off the judgment liens against the land so purchased, and the title to which was taken in her name, and she so used the money, and afterward sold the farm and received the proceeds. These facts, with others, are alleged in the complaint in this case, by the appellee, against the appellant and her husband, and a judgment is asked against the appellant for the amount so given by her husband to her in fraud of creditors.
The appellant answered by pleading the six years statute of limitation, and the appellee replied pleading a concealment of the cause of action.
There was a trial by the court without the intervention of a jury, and, on proper request, the court made a special finding of facts and stated its conclusions of law in favor of the appellee. Appellant excepted to the conclusions of law.
Errors are assigned, one of which is error in the conclusions of law, and this assignment presents the principal question involved in the case and discussed by counsel.
It is contended that the facts found show the money was fraudulently paid to the wife and used by her more than six years before the commencement of the action, and do not show a concealment of the cause of action, so as to authorize the action to be maintained at the time it was brought, being more than six years after the money was paid to the wife and used by her in fraud of the rights of the plaintiff, and, therefore, the facts found do not authorize a conclusion of law in favor of the appellee.
Section 300, R. S. 1881, provides that "if any person liable to an action shall conceal the fact from the knowledge of the person entitled thereto, the action may be commenced at any time within the period of limitation, after the discovery of the cause of action." This statute has been interpreted to mean that there must be more than silence, that there must be some affirmative acts to constitute concealment, which must be alleged and proven (Wynne v. Cornelison, 52 Ind. 312, and Jackson v. Buchanan, 59 Ind. 390); and such interpretation of the statute is unquestionably correct. But while this is true, the question as to whether or not the cause of action is or is not concealed is an issuable fact. In pleading such concealment, it certainly is not necessary to plead the evidence necessary to establish a concealment, though, under the rule laid down in the decision, it may be necessary to go further than to simply allege that the cause of action was concealed from the plaintiff; but no serious objection is urged as to the sufficiency of the reply in this case.
The cause of action in this case against the appellant is bottomed on the fact that her husband--who was insolvent and known by her to be insolvent, in collusion with her, and for the purpose of defrauding the appellee and other of his creditors--gave to his wife of his own money, which was liable for his debts, $ 800, to be used, and which was received and used, by her in the payment of her debts and the satisfaction of judgment liens against her land. It is alleged, both in the complaint and reply, that the husband and wife colluded together in the doing of the act in fraud of his creditors. The knowledge that the title to the farm was taken in the name of...
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