Richardson v. Crouch

McMahan, J. Complaint by appellees against John T. Richardson and Mary E. Richardson, his wife, appellants herein, to quiet title to a certain tract of land and to set asidé as fraudulent a deed whereby the real estate involved was conveyed to appellants by the entireties. To this complaint, appellants filed an answer of general denial and a cross-complaint asking that the title to the real estate described be quieted in them. From a decree quieting appellees’ title, this appeal. The only error assigned relates to the action of the court in overruling appellants’ motion for a new trial, the specifications of which are that the decision is not sustained by sufficient evidence'and is contrary to law. Appellants’ first contention is that there is no evidence to show that at the time of the alleged conveyance, or at any time thereafter, appellant John T. Richardson did not have sufficient property in this state subject to execution to pay and satisfy appellees’ claim. In view of the fact that the judgment must be reversed for another reason, we do not deem it necessary or advisable to enter into a discussion of the evidence bearing upon this contention. It appears from the uncontradicted evidence that appellant John T. Richardson and Harmon E. Newman as partners were indebted to appellees in the sum of $735. That judgment was rendered against John T. Richardson and Harmon E. Newman in the Hamilton Circuit Court April 7, 1919, in favor of appellees for said amount. *236 There is no evidence concerning the financial condition of Newman other than that, at the time of the trial, he owned twenty-six acres of land in Clinton county, Indiana. There is no evidence to show that Newman, at all times since the rendition of the judgment for which he was jointly liable with John T. Richardson, was not financially able to pay, and that appellees could not have collected their judgment in full from him on execution. As was said by this court in Geiser Mfg. Co. v. Lee (1903), 33 Ind. App. 38, 66 N. E. 701: "It is a rule, to which there are no exceptions, that where there there is an adequate remedy at law equity will not interfere, and that extraordinary remedies cannot be invoked. * * * There is no averment in the complaint that Lee and Hardin, co-obligors with Sylvester St. Clair, were insolvent. There is no presumption of insolvency, and if they were solvent and able to pay appellant's debt, for which it sues, then its interests and rights were not jeopardized by the conveyances which it seeks to set aside as fraudulent. So far as it appears from the complaint and the evidence, appellant has an adequate and complete remedy at law to collect its judgment by execution. As a legal remedy exists against a part of the joint debtors, equity will not extend its relief as to another of such debtors. This is an elemental principle. This exact question was decided adversely to appellant's contention in the case of Eller v. Lacy, 137 Ind. 436 ." To the same effect see Stark v. Lamb (1906), 167 Ind. 642, 78 N. E. 668, 79 N. E. 895. There are, however, some exceptions to the rule that a judgment creditor must exhaust his remedies against other judgment debtors before bringing suit to set aside a conveyance as fraudulent. Thus, in Duffy v. State, ex rel. (1888), 115 Ind. 351, 17 N. E. 615 , and in Harvey *237 v . State, ex rel. (1890), 123 Ind. 260, 24 N. E. 239 , the other judgment debtors were sureties. Alford v. Baker (1876), 53 Ind. 279 , is another apparent exception wherein it was held that the legal remedy against assets located outside of the state need not be exhausted. This case does not come within any exception, and we hold that the evidence is not sufficient to sustain the decision of the court. Judgment reversed, with directions to sustain the motion for a new trial, and for further proceedings consistent with this opinion.