Vance v. Cowing

Hanna, J. The appellees sued the appellant and others, and averred, in their complaint, that, in June and September, 1851, Walter and Andrew J Crawford became indebted to them, in the sum of about 375 dollars; that Andrew J. was then, and continued, insolvent; that, in 1854, Walter died, without leaving any property subject to execution, and that there is no administration on his estate; that the debt of plaintiffs remains unpaid; that before the creation of said debt, said Walter had bought of one Merrill, and paid for, a lot of land, described; that, in November, 1850, the deed was, by the direction of said Walter, executed to Vance, “in consideration of said purchase by said Crawford, for the purpose and to the intent that said Vance should hold said lot in trust for, and on account of, said Crawford,” and to be beyond the reach of creditors; that, in 1852, Crawford put permanent improvements, to the value of 700 dollars, on said lot; that, in 1854, said Walter sold a part of said lot to one Dickey, for 2,050 dollars, and that the portion unsold is of the value of 600 dollars; that Dickey paid 1,050 dollars down, and gave two notes, of 500 dollars each, payable to said Vance, for the balance, and that the same are held in trust, &c.; that Walter left a widow and two children, &c. Vance, Dickey, and the children of Walter Crawford, were made defendants; a judgment asked for the amount of the claim of plaintiffs, and that a decree should be rendered declaring Vance a trustee, and that Dickey pay into the clerk’s office, of the 1,000 dollars due for the purchase [461] of said lot, a sum sufficient to pay the amount that might be found due said plaintiffs. The defendants, other than Vance, were defaulted, and a guardian, &c., appointed, who answered for the minors. Vance demurred to the complaint for two causes— First. For a defect of parties, because the widow of Walter Crawford was not made a defendant. Second. That the facts stated were not sufficient, in this, that a judgment against Andrew J., the surviving partner, is not alleged to have been taken. The demurrer was, as to the first cause, sustained, and overruled as to the second. The plaintiffs then made the widow a defendant. Vance answered, first, a general denial; second, by special denials, and, also, setting up that Walter had purchased the lot in 1846, and paid 250 dollars; that becoming unable to pay for it, judgment was obtained against him in 1850, upon which Vance became replevin bail; that Walter being unable still to pay said judgment, offered defendant the lot if he would pay the judgment; that he, being the father-in-law of said Walter, and so bound for the debt, did pay it, and receive the deed therefor; that he, Vance, paid for the improvements made, and sold the part of said lot to Dickey, and held the balance thereof and said notes as his own, and not in trust for any one. To this there was a reply filed, in denial. Trial by the Court; finding and judgment, over a motion for a new trial, for the plaintiffs, S¿c. It is now urged that there is a want of proper parties; that the administrator of Walter Chawford should have been made a defendant, and, if there was none, it is a fatal defect. The demurrer filed did not make this, to-wit, the failure to make the administrator a party, an objection, nor was it raised by answer; it was, therefore, waived, even if it could have been successfully urged at any time. 2 R. S. p. 38. When a demurrer specifically points out the causes upon which the party relies, it cannot be enlarged to embrace other causes not brought to the consideration of the [462] Court. Robinson v. Leach, 10 Ind. R. 308. The complaint shows that no administrator had been appointed, and, in effect, that the decedent had no personal effects to administer upon. Welborn v. Jolly, 4 Blackf. 279.—Bryer v. Chase, 8 id. 508. The second cause of demurrer is confined specially to the non-recovery of a judgment against the surviving partner. This was not necessary, because it was averred that he was, and continued to be. insolvent. The prosecution of a suit, and recovery of a judgment, against him, could, therefore, have only resulted in increasing, by the accumulation of costs, the amount ultimately to be paid. A general bill of exceptions was taken, in which all the evidence is set forth; and in regard to various parts of such evidence, the bill shows that sometimes one, and at other times the other, party objected to the introduction of evidence; but no exception to the ruling upon the point was then noted; and in the conclusion of the bill, the defendant, Vance, excepted to the finding of the Court, and to the overruling the motion for a new trial. The plaintiffs now urge that, as the record does not show that the defendant disclosed the grounds of objection, where objection was made, to the introduction of the evidence received, nor specially except thereto, that such objection cannot be noticed here. We are of opinion that the exception to the admission of the evidence does not appear in the record. A party may object to the admission of evidence, and afterwards abandon that objection; if he does not, at the time, except to the ruling of the Court upon the point made by the objection, he, in effect, waives his objection. It is argued that the judgment is not sustained by sufficient evidence, and is contrary to law. We think the evidence so strongly tends to sustain the finding of the Court, in reference to a resulting trust in favor of Walter Crawford, arising out of the transaction, that we cannot, under our repeated decisions, disturb the finding and judgment upon that point. E. Vance and B. F. Claypool, for the appellant. N. Trusler and J. A. Fay, for the appellees. It is insisted that as the conveyance to Vance was made previous to the time the Crawfords became indebted to plaintiffs, it cannot operate in fraud of their rights. The plaintiffs do not, if we understand their position, rest their case upon any charge of fraud, but upon the ground that Vance is but a trustee of the property, and that the resulting or equitable interest of Walter Craivford in the same ought to be subjected to the payment of the debts of said Crawford. The evidence tends to prove that Vance paid some 700 dollars on the land, and some amount on the improvements thereon, but how much is not at all made certain; and that 1,050 dollars was paid by Dickey, for the part by him purchased, to said Vance. If he was, as the Court found, holding said property in trust, subject to his claim, we do not see, from the evidence, but that the 1,050 dollars would fully pay all sums by him advanced; and, therefore, we cannot disturb the finding and judgment that the notes, &c., are held in trust for the heirs, &c., of said Crawford, and that it is consequently subject to his debts. Per Curiam. The judgment is affirmed with 3 per cent, damages and costs.