Stark v. Lamb

• Decision Date: 10 October 1906
• Docket Number: 20,568
• Citation: 78 N.E. 668,167 Ind. 642
• Parties: Stark et al. v. Lamb et al
• Court: Indiana Supreme Court

78 N.E. 668

167 Ind. 642

Stark et al. v. Lamb et al

No. 20,568

Supreme Court of Indiana

October 10, 1906

Rehearing Denied January 11, 1907, Reported at: 167 Ind. 642 at 646.

From Elkhart Circuit Court; James S. Dodge, Judge.

Suit by Ellington C. Lamb against Henry Stark and others. From a decree against Henry Stark and wife, they appeal. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p. 590.

Affirmed.

James L. Harman and Edward B. Zigler, for appellants.

Perry L. Turner, for appellee Lamb.

OPINION

Montgomery, J.

Appellee Lamb brought this suit to collect a promissory note executed by Milo W. and Henry Stark, and to set aside, as fraudulent certain conveyances of real estate. Milo Stark was adjudged a bankrupt pending the litigation, and the action dismissed as to him. Appellants answered by general denial, and, at their request, the court made a special finding of facts, in substance as follows: Milo and Henry Stark executed the note August 19, 1901, which now amounts to $ 223, and at the date of the note Henry owned real estate as described, and Abbie N. Stark was his wife. Henry continued to own the real estate until April 27, 1903, when he and his wife conveyed the same to David Lingman, who on the same day, without consideration reconveyed it to Henry and his wife. On April 27, 1903, and continuously afterwards, Henry was and remained a resident householder of Elkhart county, Indiana, and had no property, other than said real estate, subject to execution. At the date of said conveyances Milo Stark owned property of the value of $ 2,682, and was indebted to the amount of $ 550, but on September 11, 1903, he was insolvent and subsequently adjudged a bankrupt and duly discharged in bankruptcy. Said conveyances were made to protect said Abbie N. Stark in the possession and use of the whole of said real estate, and with intent to defeat and defraud the creditors of said Henry Stark. The second conclusion of law stated upon such facts is as follows: "Said conveyances from the defendants, Henry Stark and Abbie N. Stark, to David Lingman, and from said David Lingman to the defendants, Henry Stark and Abbie N. Stark, are each fraudulent and void as against the plaintiff, and should be set aside."

It is alleged that the court erred in this conclusion of law, and argued that in the absence of a finding that Milo Stark as well as Henry was insolvent at the time the fraudulent conveyances were made this conclusion cannot be...