Wells v. Wells, 11411.

• Decision Date: 24 October 1923
• Docket Number: No. 11411.,11411.
• Parties: WELLS et al. v. WELLS et al.
• Court: Indiana Appellate Court

141 N.E. 232

WELLS et al.

v.WELLS et al.

No. 11411.^*

Appellate Court of Indiana, Division No. 2.

Oct. 24, 1923.

Appeal from Circuit Court, Hancock County.

On petition for hearing. Rehearing denied.

For former opinion, see 139 N. E. 286.

DAUSMAN, J.

[1][2] Counsel for the appellees insist that by countenancing the doctrine of presumptive fraud this court has fallen into error. The statement has been made repeatedly that in this jurisdiction fraud is never presumed. Hubbs v. Bancroft, 4 Ind. 388;Stewart v. English, 6 Ind. 176;Morgan v. Olvey, 53 Ind. 6;Hunt v. Elliott, 80 Ind. 245, 41 Am. Rep. 794;Phelps v. Smith, 116 Ind. 387, 17 N. E. 602, 19 N. E. 156;Wallace v. Mattice, 118 Ind. 59, 20 N. E. 497;Fulp v. Beaver, 136 Ind. 319, 36 N. E. 250;Milburn v. Phillips, 136 Ind. 680, 34 N. E. 983, 36 N. E. 360;Bruner v. Brown, 139 Ind. 600, 38 N. E. 318;Rockland Co. v. Summerville, 139 Ind. 695, 39 N. E. 307;Town of Gosport v. Pritchard, 156 Ind. 400, 59 N. E. 1058;Roehm v. Reed, 23 Ind. App. 547, 55 N. E. 772;Gipe v. Pittsburg, etc., R. Co., 41 Ind. App. 156, 82 N. E. 471.

When considering the force and effect to be given that statement, we should keep constantly in mind that the statements made in any case by any court are to be taken in the light of the facts and the nature of that particular case. If considered as a general proposition, wholly detached from the particular case in which it appears, the statement that fraud is never presumed is, of course, too broad. It is true that fraud is never presumed in actions instituted by creditors to set aside conveyances alleged to have been made fraudulently for the purpose of hindering, delaying, or preventing the enforcement of their claims; and from at least three opinions it appears that the courts intended that the statement should be limited to that class of cases. American Varnish Co. v. Reed, 154 Ind. 88, 55 N. E. 224;Cotterell v. Koon, 151 Ind. 183, 51 N. E. 235;Stout v. Price, 24 Ind. App. 360, 55 N. E. 964, 56 N. E. 857; see, also, Rockland Co. v. Summerville, 139 Ind. 695, 39 N. E. 307;Ewing v. Gray, 12 Ind. 65.

[3][4][5] It is also true that fraud is never presumed in actions between the immediate parties to a conveyance where neither party is under any disability, and each party deals with the other on an equal footing, and at arm's length. But there is a class of cases in which the courts of this state, in harmony with the courts of other states, hold that fraud is presumed. McCowen, etc., Co. v. Short, 69 Ind. App. 466, 118 N. E. 538, 119 N. E. 216;Teegarden v. Ristine, 57 Ind. App. 158, 106 N. E. 641;Donivan v. Tibbles (Ind. App.) 135 N. E. 7;Meadows v. Thomas, 187 Ind. 216, 118 N. E. 811.

Indeed, it would be impossible to administer justice efficiently in this class of cases without the presumption of fraud. Kaine v. Weigley, 22 Pa. 179. The presumption of fraud arises naturally from the relative situation and condition of the parties, when considered in the light of experience. The effect of the presumption is to place the burden of showing the righteousness of the transaction upon him who in good conscience should bear that burden. It is, therefore, a presumption of fact which may be overcome by clear and unequivocal evidence. We need not discuss the distinction between presumptive fraud and constructive fraud. It is sufficient to say that on this feature there is much confusion in the reported cases. We are content with the holding in our original opinion that in the case at bar the plaintiffs' evidence raised a clear presumption of fraud, which the defendant failed to overcome.

[6] Counsel contend that this court also erred in holding that it is not essential that a notice should have been given to, or a demand made upon, the defendant before the...