Etter v. Anderson

Niblack, J. Suit by Caleb H. R. Anderson to reform a deed of conveyance, and to annul and set aside subsequent deeds to the land intended to be conveyed. The complaint averred that the plaintiff, on the 17th day of April, 1878, purchased of Louisa Stringer the west half of the northwest quarter of a certain section of land in Montgomery county, of which she was then the owner, and paid her a valuable consideration therefor, and that on .that, day the said Louisa Stringer, together with her husband Henry D. Stringer, executed to the plaintiff a warranty deed intended to convey said tract of land to him, but that, by the mutual mistake of the parties thereto, said deed described said tract of land as the west half of the southwest quarter of said section; that afterwards the said Louisa Stringer, with her said husband, without any valuable consideration whatever, conveyed the tract of land, so purchased by the plaintiff, to Robert F. Hart and Mary E. Hart, his wife, and that thereupon the said Hart and wife, without any consideration conveyed the same tract of land to Jacob R. Etter i [335] that the said Hart and wife and the said Etter, at the time they received their respective conveyances, had full knowledge of the plaintiff’s purchase of said tract of land. Etter answered : 1. In general denial. 2. That on the 4th day of April, 1878, he purchased the tract of land in controversy of the said Louisa Stringer, who was then the owner thereof, and paid her a valuable consideration for the same, and that on that day the said Louisa Stringer, with the said Henry D. Stringer, her husband, executed to him, the said Etter, a warranty deed for said land; that when the plaintiff afterwards ba2’gained with the said Louisa Stringer concerning said land, he had notice that he, the said Etter, was the owner-thereof. 3. By way of answer and cross complaint, setting up substantially the same matters as in the second paragraph, but averring some additional facts and praying affirmative relief. The plaintiff replied to the second and third paragraphs of Etter’s answer: 1. In denial. 2. That on the 4th day of April, 1878, and immediately prior thereto, the defendant Robert E. Hart was the owner of the land in suit, and was the surety of his brother, one James H. Hart, to divers persons for the payment of lai’ge sums of money; that, for the purpose of cheating, hindering, delaying and defrauding the creditors of the said James H. Hart, to whom he, the said Robert, was surety as above stated, he entered into a conspiracy with the said Louisa Stringer, Henry H. Stringer and the defendarit Etter, by which said land was to be fraudulently conveyed to the said Etter, a2id to be held by him for the use and benefit of the said Robert; that, in accordance with the terms of such conspiracy, the said Robert and wife, on said 4th day of April, 1878, conveyed said land, without any valuable consideration, to the said Louisa Stringer, who thereupon, on the same day, with her [336] husband, made a voluntary conveyance of said land to the defendant Etter 5 that, soon afterwards, the debts for which the said Robert was surety, as above set forth, were compromised and paid; that thereupon, by the mutual consent of all parties thereto, the deeds so made to the said Louisa Stringer, and by her and her husband to the said Etter, and which had not yet been recorded, were surrendered, cancelled and destroyed. Wherefore it -was claimed that Etter was estopped from asserting any claim to the land in dispute. The reply contained two additional paragraphs, but they were but repetitions in different forms of the same substantial matters set out as above in the second paragraph. Etter demurred separately to all the paragraphs of the reply except the first, but his demurrer was overruled as to all the paragraphs thus demurred to. A jury returned a general verdict for the plaintiff. Whereupon the court entered a decree reforming the plaintiff’s deed as demanded by the complaint, declaring him to be the owner of the land described in the deed as reformed, and quieting his title to the land. Etter alone has appealed. We have no brief for the appellee, and the record is in some respects not in a satisfactory condition, but apparently the first question we are required to consider, is that of the sufficiency of the second paragraph of the reply. It is argued that, upon the facts stated in that paragraph, the plaintiff was shown not to have occupied such a relation to the land claimed by him as to enable him to take advantage of the alleged fraudulent character of either the deed from Hart and wife to Mrs. Stringer, or from her and her husband to Etter. The statute bearing upon the question thus raised, and which was in force when the deeds sought to be avoided were made, was as follows: “All conveyances or. assignments in writing or otherwise, of any estate in lands, or of goods, or things in action, * and .all bonds, contracts, evidences of debt, judgments, decrees, [337] made or suffered with the intent to hinder, delay, or defraud ■creditors, or other persons of their lawful damages, forfeitures, ■debts, or demands, shall be void as. to the person sought to be defrauded.” 1 R. S. 1876, p. 506, section 17. With .this statute, and other decided cases before it, this ■court, in the case of Edwards v. Haverstick, 53 Ind. 348, said: “It is firmly settled by repeated decisions in this State, that a contract for. the sale or conveyance of property, to hinder or delay creditors, is illegal as to creditors only. As between the parties, and as to all others than creditors, it is legal and valid, and can be enforced in all of its terms as any ■other contract.” The rule of law thus formulated was well supported by the authorities cited in that case, and has since been fully recognized by this court. Garner v. Graves, 54 Ind. 188; Sharpe v. Davis, 76 Ind. 17 ; Stout v. Stout, 77 Ind. 537. As has been seen, the paragraph of reply under consideration did not show the plaintiff to have been either a creditor ■of the Harts, or to have been otherwise interested in the subject-matter of the alleged fraudulent conveyances, at the time those conveyances were made. The plaintiff was not, therefore, the person sought to be •defrauded within the meaning of the statute set out as above. Hor was he, in legal contemplation, actually defrauded by .such conveyances, conceding them, as the demurrer did, to have been fraudulent as to the creditors of the Harts. The facts set up by the plaintiff in reply were likewise an attack ■upon the title of Mrs. Stringer, under whom he claimed, as well as upon the title of Etter, and were inconsistent with the averments of the complaint, which asserted that Mrs. Stringer was the owner of the land in litigation at the time the plaintiff purchased it from her, and that he derived title ■through her. In these respects the facts replied were to the •effect that neither the plaintiff nor Etter had any title to [338] the, land. This was obviously bad pleading and constituted an insufficient reply to the answer of Etter. A party can not be permitted to plead facts in derogation of his own title for the purpose of destroying'the claim of his adversary, while seeking to recover upon the strength of his own title; What we have said as to 'the second paragraph has a substantial application to both the third and fourth paragraphs, of the reply. We are consequently brought to the conclusion that all the-, special paragraphs of the reply were bad upon demurrer, and that for that reason the judgment ought to be reversed. The judgment is reversed, with costs, and the cause remanded for further proceedings.