Smith v. Blair

• Decision Date: 28 January 1893
• Parties: SMITH v. BLAIR et al.
• Court: Indiana Supreme Court

133 Ind. 367

32 N.E. 1123

SMITH

v.BLAIR et al.

Supreme Court of Indiana.

Jan. 28, 1893.

Appeal from circuit court, De Kalb county; S. A. Powers, Judge.

Action by Benjamin F. Blair and others against Julietta Smith for the recovery of money. From a judgment for plaintiffs, defendant appeals. Affirmed.

C. A. O. McClellan and R. W. McBride, for appellant. W. L. Penfield, for appellee.

Olds, J.

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 afterwards 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 limitations, 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, Rev. St. 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 a concealment, which must be alleged and proven, (Wynne v. Cornelison, 52 Ind. 313, 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,...