Whitney v. Marshall
| Decision Date | 05 June 1894 |
| Docket Number | 16,779 |
| Citation | 37 N.E. 964,138 Ind. 472 |
| Parties | Whitney et al. v. Marshall |
| Court | Indiana Supreme Court |
From the Vigo Superior Court.
The judgment is affirmed.
B. E Rhoads and E. F. Williams, for appellants.
C. R Trowbridge and T. W. Harper, for appellee.
The appellee sued the appellants in the court below to obtain partition of certain real estate in Vigo county, describing it, and alleging that she was the owner in fee simple of the undivided one-third thereof, and that appellants owned the other two-thirds in fee as tenants in common with her.
Appellants answered by a general denial, and filed a cross-complaint on which issues were formed, in which cross-complaint they set up a former adjudication in a suit between them and appellee in the United States Circuit Court for the district of Indiana, by which they claimed that appellee was adjudged to have no title whatever in said real estate, and in which adjudication said real estate was ordered to be sold to satisfy a judgment in favor of appellants and against appellee's husband, James A. Marshall, and that they purchased under such decree. A trial resulted in a finding and judgment of partition, requiring one-third of said real estate to be set off to appellee and the other two-thirds to the appellants.
The overruling of the appellants' motion for a new trial is the only error properly assigned. The grounds assigned in the motion are, that the finding is not sustained by the evidence, and is contrary to law.
The record shows that the real estate in controversy was purchased and paid for by the husband of appellee, the title being taken in the name of the appellee, his wife, while he was in failing circumstances, and for the purpose of hindering, delaying and defrauding his then existing creditors, among whom were the appellants.
The appellants thereupon brought suit against said James A Marshall, in the Vigo Superior Court, to collect their debt against him, and attached the real estate now in controversy, treating the same as fraudulently conveyed to his wife, and subject to attachment against him.
That suit was, on petition of appellants, removed for trial into the circuit court of the United States for the district of Indiana.
That case was put at issue and tried in the latter court, resulting, on the 29th day of September, 1887, in a judgment in favor of appellants and against said James A. Marshall, for $ 6,029.65, with an order for the sale of the attached property, that being the real estate now in controversy, to satisfy said judgment. Mrs. Marshall, the appellee here was not a party to that suit.
The proper order of sale was issued and placed in the hands of the United States marshal, and thereupon Mrs. Marshall began a suit in the superior court of Vigo county against the present appellants to quiet her title to the real estate now in controversy here. Her complaint was in a single paragraph in the usual form.
Further proceedings looking to a sale by the marshal until that suit could be determined were suspended by the marshal, presumably at the request of the judgment plaintiffs, the present appellants.
On their petition, the suit of Mrs. Marshall to quiet title was also removed for trial into the United States Circuit Court for the district of Indiana. In that court the then defendants, the present appellants, filed an answer and a cross-complaint against Mrs. Marshall. The substance of that cross-complaint is that the then cross-complainants had recovered the judgment already mentioned, stating the specific description of the indebtedness upon which the judgment had been founded; it also stated that they had in that proceeding charged that said James A. Marshall was then conveying and disposing of, and had conveyed and disposed of, his property with a fraudulent intent to cheat, hinder and delay his creditors, upon which they had caused the real estate in question to be attached; that issues were formed upon said cross-complaint against Mrs. Marshall, resulting in a finding and judgment in their favor specifically decreeing the sale of said property to satisfy the judgment theretofore recovered against her husband.
Their cross-complaint further alleged that at the time of said conveyance, and at the time of said suit, the said James A. Marshall had no other property in the State of Indiana subject to execution, and that the said conveyance was made with the fraudulent purpose to cheat, hinder and delay his creditors, of all of which facts the plaintiff, Mrs. Marshall, had knowledge, and to all of which fraudulent acts of her husband she was a party; that said judgment remained wholly unpaid and unsatisfied, and that the order of sale already mentioned was still in the hands of the marshal unexecuted and unsatisfied; that said James A. Marshall was a nonresident of the State of Indiana, and that he has no other property out of which defendants' judgment may be made; that said property is worth less than $ 4,000, and subject to a mortgage of $ 2,200; that said property is the proceeds of a certain stock of goods owned by said James A. Marshall, and for which he received the said real estate, taking the title thereto in the name of his wife, the complainant, without any consideration moving from her to him.
Prayer that the title to the said real estate be quieted in James A. Marshall, and that the same be sold to satisfy said judgment, and proper relief.
On the hearing, the federal court dismissed Mrs. Marshall's complaint to quiet title, and found that the allegations of the cross-bill just mentioned were true and sustained by the evidence.
Upon this finding, a specific decree and judgment was rendered, setting forth the relief granted, among which is the following, viz: "It is further adjudged and decreed by the court that if the said complainant (Mrs. Marshall) shall not pay the judgment heretofore rendered in this court against the said James A. Marshall, her husband, as appears of record in law order-book 5 of this court, page 369, et seq., within ten days from the date of this judgment, then said property, to wit: (describing it) be sold as other lands are sold upon execution, to be issued upon the said judgment without relief from valuation or appraisement laws, * * * and that all claim, right, title or interest of any kind of the said Nannie A. Marshall in and to said real estate be forever foreclosed, barred and cut off by said sale, and that the purchaser have full and complete title to the entire property, as against said Nannie A. Marshall and James A. Marshall, and any person claiming by, through or under them, or either of them."
After the rendition of the foregoing decree, the marshal sold the real estate to the judgment plaintiffs, the present appellants, and afterwards, at the proper time, executed to them a deed conveying said real estate to them pursuant to said sale.
After that, Mrs. Marshall, the present appellee, began this suit for partition, claiming that under the statute she was entitled to one-third thereof. It provides that "In all cases of judicial sales of real property in which any married woman has an inchoate interest by virtue of her marriage, where the inchoate interest is not directed by the judgment to be sold or barred by virtue of such sale, such interest shall become absolute and vest in the wife in the same manner and to the same extent as such inchoate interest of a married woman now becomes absolute upon the death of the husband whenever, by virtue of said sale, the legal title of the husband in and to such real property shall become absolute and vested in the purchaser thereof."
It then provides that she may have partition. 1 Burns' R. S. 1894, section 2669; R. S. 1881, section 2508.
The controversy here is narrowed down to two propositions urged by the appellants' learned counsel, either one of which, if tenable, would establish that the finding in favor of the appellee is not sustained by the evidence and is contrary to law.
One of those propositions is that the decree of the Federal court directed appellee's inchoate interest to be sold or barred by virtue of the sale; and the other is that the appellee never had any inchoate interest in the real estate in question because her husband never owned it, and on his death, for that reason, no part of it could have descended to her. There can be no doubt that the language of the decree above quoted was intended to have the effect to direct the inchoate interest of the appellee to be sold or barred, and if that decree is effective in accomplishing its object, then the finding of the trial court was both contrary to law and unsustained by the evidence. If that part of the decree is valid, then appellee's inchoate interest, if she had any, was sold and barred.
But it is contended, on behalf of the appellee, that such part of the decree is not valid. It will be observed that appellee's complaint to quiet title was as hostile to an inchoate interest in herself as it was to any interest that the then defendants, the present appellants, may have had in the real estate. Her complaint claimed that she owned it in fee-simple and made no other claim to it. It is difficult to see how an adverse decision on such single claim, her husband still living, could involve an adjudication against her inchoate interest. Be that as it may, it is sufficient to say that her complaint on the hearing was dismissed for want of equity, and the whole judgment and decree was founded upon the cross-bill of the then respondents, the present appellants. That cross-bill stated no fact invoking the judgment or decree of the court ordering her inchoate interest sold or barred by virtue of the sale. It proceeded wholly on the theory that...
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