The Exchange Bank v. Ault
| Citation | 1 N.E. 562,102 Ind. 322 |
| Decision Date | 12 June 1885 |
| Docket Number | 11,723 |
| Parties | The Exchange Bank v. Ault et al |
| Court | Supreme Court of Indiana |
From the Owen Circuit Court.
The judgment is reversed with costs, and the cause is remanded with instructions to sustain the demurrers to the second and fourth paragraphs of cross complaint, and for further proceedings.
S. O Pickens and I. H. Fowler, for appellant.
W. R Harrison, W. E. McCord and J. C. Robinson, for appellees.
The appellant, the Exchange Bank, as plaintiff, commenced this action against the appellees, Henry J. Ault, Elizabeth Ault Thomas B. Ault and Mary A. Ault, as defendants. Appellant's complaint, as filed, contained two paragraphs; but, before the trial of the cause, the first paragraph was withdrawn, and it need not be further noticed. In its second paragraph of complaint appellant alleged that it and the appellees were the owners in fee simple and tenants in common of certain described real estate in Owen county; that no person or persons, or corporation, other than appellant and the appellees, had any interest in or title to such real estate, or any part thereof, in possession, remainder, reversion or otherwise; that appellant was the owner of the undivided two-thirds part of such real estate, and that the appellees were the owners of the residue thereof. Wherefore appellant prayed for partition, etc.
The appellees jointly answered by a general denial of the complaint; and the appellee Thomas B. Ault separately filed a cross complaint in four paragraphs. Appellant's demurrer was sustained as to the first paragraph, and overruled as to the second, third and fourth paragraphs of such cross complaint, and these latter paragraphs appellant answered by a general denial. The issues joined were tried by a jury, who afterwards returned into court a special verdict. The appellee Thomas B. Ault moved the court for a judgment in his favor on the special verdict; and pending such motion appellant moved the court in writing "to render a special finding of its own in writing of the facts, from the evidence in the cause, upon which to give its conclusions of law and render judgment herein." Appellant's motion was overruled by the court, and the motion of appellee Thomas B. Ault was sustained by the court, and judgment was rendered accordingly.
The first error of which appellant complains is the overruling of its demurrer to the second, third and fourth paragraphs of Thomas B. Ault's separate cross complaint.
In the second paragraph of his cross complaint Thomas B. Ault alleged that he was the owner in fee simple, in his own right, of the land described in appellant's complaint; that the only claim of the appellant in or to such land consisted in a judgment and decree of the court below, rendered on the 18th day of December, 1877, in an action wherein appellant was then plaintiff and Thomas B. Ault was defendant, and wherein it was set forth that appellant had recovered, before that time, in such court a certain judgment against Henry J. Ault and one George White, and that Henry J. Ault had, before that time, fraudulently conveyed such land to Thomas B. Ault to defraud his creditors, and in which action such decree was rendered upon a pretended default of Thomas B. Ault to answer and defend such action; that such decree was to the effect that such land of Thomas B. Ault was subject to and should be sold to satisfy such judgment against Henry J. Ault and George White, and there was a pretended sale under such decree to the appellant of such land, and a deed by the sheriff of Owen county to appellant, in pursuance of such sale.
And Thomas B. Ault averred that appellant ought not to have or maintain this action, or any benefit or advantage of, or right or claim under, its aforesaid decree or the sheriff's sale or conveyance of such land, because, he said, appellant's aforesaid action against him was begun for the purpose of secretly and without his knowledge procuring an advantage of him and securing, in like manner and without his knowledge, a lien upon his land; that, in pursuance of this purpose, the appellant, on the 18th day of December, 1877, though it well knew that Thomas B. Ault had no knowledge of the commencement or pendency of such action, and well knew that he was the owner in good faith of such land, and that neither George White nor Henry J. Ault had any interest therein, and that Henry J. Ault had not fraudulently conveyed such land to him to defraud his creditors, but intending thereby to cheat and take from him his land, unjustly and without cause, caused such decree to be entered against him as by default; that, in further pursuance of such purpose, the appellant, well knowing that if Thomas B. Ault had information of such action or decree within two years from and after the rendition thereof, he would have caused and had the same to be set aside, caused and permitted such decree to remain without any proceeding thereon, until the day of February, 1881, and kept him in ignorance during all that time of such action and decree, and thereby prevented him from making application to have the same set aside; that, in fact, as appellant well knew, no summons or other notice was ever, at any time, given Thomas B. Ault of the aforesaid action to subject his land to sale on appellant's judgment against Henry J. Ault and George White; and that he had no knowledge or notice of such decree to sell his land until long after its sale thereunder, and more than three years after the pretended entry thereof; that such land belonged to Thomas B. Ault absolutely, when such decree was rendered and the sheriff's sale thereof made, and Henry J. Ault or George White had no interest therein, and neither of them had conveyed such land to him to defraud their, or either of their creditors. Wherefore Thomas B. Ault prayed judgment that appellant's decree against him of December 18th, 1877, be set aside as fraudulent and void, together with all proceedings thereunder, that he be adjudged the fee simple owner of such land, and that appellant be enjoined from setting up claim thereto or lien thereon by reason of such decree or sale thereunder, and for all other proper relief.
Of the third paragraph of Thomas B. Ault's cross complaint which is "the ordinary paragraph for quieting title," in their brief of this cause, appellant's counsel say: "We think it is good." We need not, therefore, notice this...
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