Jones v. Reeder

Perkins, J. The complaint in this case shows that John J). Jones $■ Co. recovered a judgment in the Howard Circuit Court, at the November term, 1856, against Jonathan Reeder, for over 1,600 dollars. It further shows that, at that time, said Jonathan owned a tract of land in Madison county, Indiana, and that, to defraud his creditors, he conveyed it without consideration to one Ring, who, to aid Jonathan in accomplishing his fraud, conveyed the same, without consideration, to Joseph II. Reeder, who mortgaged said tract of land to the sinking fund for a loan of 500 dollars, which he received, all of which acts were done by said Joseph as a party to the purpose of Jonathan to defraud Ms creditors. The State, however, received the sink [112] ing fund mortgage and made the loan of 500 dollars in good faith. Martindale § Grubbs, for the appellants. Lindsey ‡ Davis, for the appellee. The complaint further shows that all the foregoing conveyances, except the mortgage to the sinking fund, were adjudged void by the Madison Circuit Court, and the land in question ordered to be sold for the benefit of Jonathan’s creditors, subject to the mortgage to the fund above mentioned; that the sale took place but failed to produce sufficient to pay the creditors, and this suit is now brought against Joseph II. Peeder to compel him to account for and pay over to Jonathan’s creditors the 500 dollars he obtained by mortgaging Jonathan’s land, held by him, Joseph, fraudulently, and without any consideration paid for it. The Court below sustained a demurrer to the complaint on the ground of want of sufficient facts. We think the Court erred. We think the complaint makes a case against Joseph for an accounting and payment over of the money. He holds it absolutely as against Jonathan, but in trust as to the creditors of Jonathan. Patridge v. Gopp, 1 Eden. 163; Ames v. Blunt, 5 Paige 13; 1 Story’s Eq., §§ 365, 368, 438, and notes; Simpson v. Gowdy et al., 19 Ind. 292, and cases there cited. The question in this complaint was not embraced in the former suit. Per Curiam. The judgment below is reversed, with costs. Cause remanded with instructions to overrule the demurrer.