Powell v. Stickney

Elliott, J. — No objection was made to the sufficiency of :the complaint in the court below, but it is objected here that the description of the personal property sought to be recovered is insufficient. The objection comes too late. There are many defects which a verdict cures, and among them is the ■one now pointed out. If appellant had desired a more definite description of the property, he should have pursued a very different course from that adopted by him. Error in excluding evidence must be assigned as a cause for a new trial, or it will be without avail on appeal. The possession of personal property by the seller after sale does not, of itself, make the sale fraudulent, for if it appear that there was a sale for a valuable and fair consideration, and that the seller was continued in possession merely as agent, and that there was no fraudulent intent on the part of the buyer, the sale will be upheld. “ If,” as Bump says, “ the fraudulent intent is present, the conveyance is void; if it is absent, the conveyance is valid.” Bump Fraud. Conveyances, 62; Kane v. Drake, 27 Ind. 29. i Under our statute fraud is a question of fact for the jury, and a case of fraud is not made out by merely showing a sale <of goods without a change of possession. It is necessary for [312] ■the party alleging fraud to show, at least, that the vendor had no other property subject to execution. Rose v. Colter, 76 Ind. 590. Where a surety assumes payment of a debt of the princi- - pal, and' mortgages his real estate to secure it, and in consideration of these acts personal property is conveyed to him by the principal, the transaction rests upon a valuable consideration, and the conveyance can not be set aside unless it be made to appear that both buyer and seller were guilty of fraud. The' rule governing cases of voluntary conveyances does not obtain where the conveyance is made upon a valuable consideration. Judgment affirmed.