Tevis v. Doe

Perkins, J. Ejectment by Doe on the demise of Fletcher Tevis, jun., for nineteen and a half acres of ground, being a part of the north-east quarter of section 19, &c., in Rush county. Andrew Colliver and Joel Tevis were admitted defendants. They entered into the usual consent-rule, and put in the plea of not guilty. The cause was tried by the Court, without a jury, and there were a finding and a judgment for the plaintiff. It was shown in evidence that the legal paper title to the land in question, was in Andrew Colliver; that it was conveyed to him on the 3d day of May, 1847, by George [130] Hewitt, and wife, in whom it then was ; but, on the part of the plaintiff below, it was shown that said Hewitt had sold the land by contract, in 1844 or 1845, to Joel Tevis, received the greater part, if not all, of the purchase-money, and put him in possession; that in the spring of 1840, a judgment was rendered in favor of one Sewell against said Joel and one Fletcher Tevis, which judgment was stayed by John D. Tevis as bail; that said John D. Tevis's property was sold ón execution to satisfy said judgment, and that on the 29th of April, 1847, four days before the land in question was deeded to Colliver, said Tevis obtained a judgment, on motion, awarding execution in his favor against said Joel and Fletcher Tevis for 227 dollars, the amount made out of his property as their replevin-bail; that, at that time, Joel Tevis had a bill in chancery pending against said Hewitt in the Rush Circuit Court, to compel the execution of a deed for said land from said Hewitt to said Joel Tevis; and that after said judgment in favor of John D. Tevis against said Joel and Fletcher was rendered, an arrangement took place between said Joel, Hewitt, and Colliver, pursuant to which said Hewitt deeded said land to Colliver, and not to said Joel. John I). Tevis, believing that that conveyance was fraudulent, had his execution, on his above-mentioned judgment, levied on said land, by virtue of which levy the land was sold as the property of Joel Tevis, by the sheriff of Rush county, on the 18th day of September, 1847, and deeded to Fletcher Tevis, jun., the lessor of the plaintiff below. Upon the trial in the Circuit Court, the conveyance to Colliver was decided to be fraudulent, and the land was held to have passed by the sheriff’s sale to said Fletcher Tevis, jun. The first question made in this Court, is whether the proof shows the conveyance of the land to Colliver to have been fraudulent. We shall not incorporate the evidence upon this point in our opinion. The question was for the jury, or the.Court discharging the function of the jury; and such is the evidence, that, had the finding been [131] either way, we could not, by the rules of law, have disturbed it. It could, therefore, form no precedent, even were the evidence set out, in future circuit trials, in aid of correct verdicts. Next, the position is taken that, admitting the conveyance to have been fraudulent, this is not a case within the provisions of the statute of frauds in reference to the sale of lands on execution. Our statute (R. S. p.453, s. 1,) enacts, among other things, that “ lands, tenements, and hereditaments, fraudulently conveyed with intent to defeat, delay, or defraud creditors,” and such as are “ holden by any one in trust for or to the use of another,” shall be liable to be sold on execution, &c. Now, if Joel Tevis had fully paid the consideration for this land to Hewitt, and was entitled to a deed, but had the same conveyed for his use to Colliver, Colliver held the land simply in trust for said Joel, and it was subject to the execution in this case. See Bogart v. Perry, 1 John. Ch. R. 52. And if said land was conveyed to Colliver, by the procurement of said Joel, “ with intent to defraud” said John D. Tevis out of his judgment, and said Colliver was a party to the fraud, then, without regard to the question of the payment of the consideration, the land was subject to the execution. These questions were for the jury, as to the facts. It is next objected that the land was sold without appraisement. John D. Tevis became bail on the judgment in question, in 1840. That, therefore, is the date of the contract out of which the liability of Joel and Fletcher Tevis to him arose; and we think it right that he should have the advantage of the law of that date. That law required no appraisement. On the trial, Colliver, with a view to show that he had paid something to Joel Tevis for the land conveyed, proved that he had, as replevin-bail, been compelled to pay a judgment for said Tevis. The plaintiff, in rebutting, proved, by A. W. Hubbard, that soon after Colliver paid said judgment, he employed said Hubbard to sue a constable for some neglect in regard to its collection, and that [132] the constable and his sureties compromised with Colliver and paid him within 15 or 16 dollars of the amount he had paid on said judgment. R. S. Cox, J. Perry, and E. Coburn, for the plaintiffs. J. S. Neuman, for the defendant. This evidence was objected to on two grounds: 1. Because the proceedings in said suit against the constable were not given in evidence; and, 2. That if the constable and sureties did pay back the money to Colliver, it was his gain, and Tevis had no right to the benefit of it. As to the first objection, it is a sufficient answer to say that it does not appear that any suit was instituted against the constable; and, further, if there was, the money was not collected by means of a judgment in the suit, but was paid on a compromise, perhaps a verbal one, independent of the suit, and there could be no objection to proving such a compromise by parol and the amount paid upon it. As to whether Tevis had a right to the benefit of that payment, or not, there is nothing on the record showing us what the neglect of the constable, on account of which he paid the money, was. If it was such as .gave Tevis a right of action against him, and Colliver having paid the judgment, availed himself, by the consent of Tevis, or otherwise, of that right, Tevis should have the benefit of the amount collected. It may have been such a case. Per Curiam. The judgment is affirmed with costs.