Law and Others v. Smith and Others, 4 Ind. 56

Perkins, J. Bill in chancery by the devisees of George W. Ewing, against the grantees of Hosea Smith and their assigns, to set aside conveyances of real estate made by said Hosea, as fraudulent. The title of the plaintiffs to the lands in question, rests upon sheriff’s sales made under judgments against said Hosea and one Benjamin Rice, pursuant to which deeds were made to their devisor, one for a part of the premises, on the 17th day of February, 1825, and another for the remainder, on the 17th of February, 1826.

Answers, exhibits, and replications were filed, depositions taken, the cause heard on its merits by the Circuit Court, and the bill dismissed. Several grounds are taken by the defendants in support of said decision. They insist, in the first place, that the plaintiffs have no valid title to the lands in dispute, and hence, cannot sustain this bill, because the sales on execution, through which their pretended title is derived, were void. The judgments upon which the execution-sales took place, were rendered in 1818, in suits on promissory notes, dated in 1816.

On the 27th of June fi. fas. issued on the judgments, upon which the returns were: “ Levied on the property of Benjamin Rice and Hosea Smith, July 30th, 1818, and execution and sale stayed by order of the plaintiff. July 23d, 1818.” Afterwards, and prior to December, 1818, Rice died, and said Hosea Smith was appointed his administrator.

At the June term, 1820, of the Circuit Court, “the said Court,” the answer to the bill admits, “upon a scire facias issued upon each of said judgments, and served on said Hosea Smith, rendered a judgment of revivor.” The judgments of revivor were in these words: In the first case, “ On motion, it is ordered that the judgment heretofore rendered in this case be revived against Hosea Smith as administrator of Benjamin Rice, deceased, and against Hosea Smith, (the former judgment having been rendered against Hosea Smith and Benjamin Rice) and the defendants in mercy,” &c.; in the second case, “The parties appeared, and, on motion, same orders.” On these judgments fi. fas. were issued, and levied upon real estate of Smith, “ but too late to sell,” and alias fi. fas. were issued, on which returns were made that the property levied on by the former fi. fas. was not sold for want of a buyer, accompanied by an appraisement amounting to 4,371 dollars and 66 cents.

This was in 1821. A series of writs of venditioni exponas followed, till, upon one issued in 1823, a sale was effected of the real estate appraised, to Geo. W. Ewing, at 337 dollars and -37 cents. In 1825, a deed was made by the sheriff pursuant to the sale, and in the same year a further sale of other lands was made under executions on said judgments, to said Ewing, and, in 1826, a deed was executed by the sheriff purporting to convey the lands sold at that sale, to the purchaser. Both of the deeds from the sheriff were duly recorded.

No writs of venditioni exponas appear to have issued to compel a sale of the property taken by virtue of the first executions which were issued, in 1818, on the judgments; and it is claimed that said judgments have, therefore, from that time remained satisfied. The returns upon the executions of 1818 were, that they were levied “upon the property of Benjamin Rice and Hosea Smith,” without designation of the kind, quantity, or value, and were accompanied by no other paper or memorandum that removed their uncertainty; and they were, therefore, void for uncertainty .

Further, a levy is but a prima facie satisfaction, and may be shown to have proved not an actual one. Doe v. Dutton, 2 Ind. R. 309. The subsequent proceedings by scire facias, show that the levies in this case did not prove actual satisfactions. Indeed, but a small portion of the judgments appears to have been ever collected. It is also objected, that the judgments of revivor upon scire facias were void, and authorized no executions. They are copied above. They were informal, but, we think, not void.

The record in each case, shows that the necessary party was notified, appeared, and had an opportunity to make any defence that might exist against the award of execution, and shows the judgment of the Court in the premises, that none such was shown to exist. A case was presented to the Court in which a formal judgment, instead of an order, should have been entered; and perhaps the same particularity would not be required in a judgment of revivor upon scire facias, that would be necessary in the original judgment.

But it is further urged, that said judgments, if good in form, could not authorize the sale of the real estate of either Smith or the heirs of Rice, because said heirs were not made parties, in either case, with Smith to the scire facias, and Erwin's Lessee v. Dundas, 4 How. U. S. R. 58, is cited. This position would be correct, if the law did not permit a sale of the real estate of heirs without a judgment against them.

But by the law of Indiana, at the time the debts in question were contracted, and the proceedings upon scire facias had, the real estate of which a person died seized, as will appear from an inspection of the statutes, was subject to sale for his debts, upon a judgment against his administrator, and without notice to his heirs. Hence it was necessary to join only,the administrator of a deceased joint-debtor with the survivor, to obtain a judgment, upon which the lands of the one, and of the heirs of the other, could be sold. See Fritz v. Evans, 13 S. & R. 14.

Again, it is objected that the sale of the property was without appraisement, the law, at the date of the sale, requiring one; that it does not appear that the rents and profits were first offered for sale; and that the small sum at which the sale was made, compared to the value of the property sold, was such as to vitiate the sale.

But the laxv at the date of the contracts did not require an appraisement before sale of property on execution, and, hence, a sale in this case, without an appraisement, was proper; and, it not appearing that the rents and profits were not first offered, it will be presumed that they were so; and the small price for which the property sold, having resulted from the improper conduct of the execution-defendant, Smith, in throwing a cloud upon the title to it, as will subsequently appear in this opinion, the defendants in this case cannot make an objection on that ground.

We think the proceedings upon the executions were not void. But prior to the rendition of the judgments on which said executions issued, Hosea Smith, the judgment-debtor, whose lands were sold, had" conveyed the lands away to his sons; and we must inquire into the validity of those conveyances. He first executed deeds to them in March, 1817. They were four in number. One to his son Henry, then about fifteen years old, for the S. E. quarter of

section 28, and for the consideration, as stated in the deed, of 500 dollars. One to Onias, then about twelve years old, for a part of

section 33, and for the consideration, as named in the deed, of 500 dollars. One to Warren, then about six years old, for a part of

section 33, for the consideration of 550 dollars. One to Hosea, Jr., then about four months old, for the N. W. quarter of

section 27, and one hundred acres out of the N. E. quarter of

section 28, and for the consideration of 1000 dollars. These deeds, it is said, were deeds of gift, made by the donor to his sons, in pursuance of a long indulged intention, and just upon the eve of his departure upon a long journey, from which he feared he might never return. They were not recorded, but handed to a son-in-law, who deposited them in a bureau in the donor’s house, where they remained, and were never taken away by the son-in-law, to whom they were delivered.

In March, 1818, said Hosea, Sen., having returned from his journey, and supposing the deeds he had previously made to be invalid, he executed another set of deeds, in all respects like the first, and caused them to be recorded. These latter deeds were executed but a short time before the judgments first mentioned in this suit, were rendered against said Hosea and Rice, amounting to near 1,800 dollars, and of which but 411 dollars were ever made in exhausting the property of Rice and Smith, other than these lands conveyed by Smith to his sons.

At the same time that Smith made the first set of deeds, in 1817, he executed to his son-in-law, Charles Alexander, leases' for the several tracts of land described in the deeds, reserving rent payable to himself, which leases were for different terms of years, covering the minority of his sons respectively; but said Alexander never, in good faith, took possession of and cultivated the lands leased, as a tenant, and it was never intended that he should. We cannot doubt that the above-mentioned conveyances must be held fraudulent as to creditors.

Some effort has been made to show that Smith was but a surety in the debts for Rice, and that at the time the conveyances in question were made, it was supposed Rice would be fully able to pay the debts. Results, however, demonstrated the contrary, and Smith, who was the partner of Rice, must be supposed to have known more accurately than others his true situation.

The most favorable view, then, for the defendants, in which this case could be looked at, would be to regard it as presenting this question: Can a man indebted in large amounts, whether as principal or surety, make a voluntary conveyance of his property, and thus defeat the collection of said debts? We think not. The claims of justice are paramount to those of affection and charity.

A man thus indebted may undoubtedly make a voluntary conveyance that will be valid, as such a conveyance should not be attacked by creditors till after his other property is exhausted, and, it proving sufficient for the payment of his debts, the voluntary conveyance should .stand. In this case such other property did not prove sufficient, and Smith, having been the administrator of Rice, cannot be supposed to have wasted the effects left by him.

We will remark, however, that for the decision of this case, we do not deem it necessary to go the length of the proposition we have laid down above, as the circumstances indicate that the conveyances of Smith to his sons, were made with the intention and purpose of preventing the lairds conveyed being made subject to the payment of the debts mentioned. Adverse possession is also set up by the defendants in bar of the plaintiff’s claim of title.

The deeds made by Smith to his sons having been fraudulent, the property in question must be considered, so far as this case is concerned, to have been in him at the time of the sheriff’s sales and conveyances. The conveyances were in 1825 and 1826. Any possession claiming to be adverse to the title of the plaintiffs must, therefore, commence at or subsequently to the former of those dates.

Aii adverse possession, giving title, is one that is exclusive and continuous, for, under our statutes, twenty years, under such circumstances as show the party to.be occupying upon a claim of ownership, in himself, of the premises. The circumstances evidencing such a state of facts are various.

If a possession is hostile in its com'mencement, as if one actually oust or disposses another, for example, one joint-tenant his co-tenant; or if one enter under another, and subsequently disclaim his title; or if he enter under a conveyance purporting to convey the legal title, and continue to occupy for twenty years after-wards as owner, an adverse possession will be shown. The suit in this case was commenced in February, 1847. Twenty years anterior to that date would be February, 1827.

So early as that, then, a possession adverse to Ewing, the purchaser at sheriff’s sale, must have commenced, to have ripened into a perfect titlé before the commencement of this suit. The sons severally took possession of their respective tracts, says Charles Alexander, “ when they became of age or got married.” Ashbury Alexander says they took possession as they became of age; and, as there is no evidence that any of them married before they were of age, that time may be taken for the commencement, respectively, of their several possessions.

Till that period they remained in the family of their father, on the farm, working with him, as usual. Henry, one of the sons, arrived at majority in 1823, and Onias, another of them, in 1826. The possession of these two had, therefore, been sufficiently long, and we think it was adverse. The deeds to them from their father were void as to creditors, but valid as against himself, and they had not, at the dates of Ewing’s purchases, been decided to be void as to creditors. The sons undoubtedly occupied the lands, claiming to be the fee-simple owners.

The other two sons, Warren and Hosea, Jr., became of age, the former in 1832, the latter in 1838. Their possessions, therefore, though adverse, had not, at the commencement of this suit, been of sufficiently long continuance to perfect their title. Up to the times that the sons respectively took possession, the father, Hosea, Sen., the execution-defendant, remained in possession, and the possession of an execution-defendant is not adverse to the purchaser under the execution. The leases mentioned above, we do not regard as having any influence in the case. .

Lapse of time is also urged in the argument of the cause, as evidence of abandonment of all claim on the part of the plaintiffs. Had this ground been set up in the answer, even, we do not think it would have availed. Ewing obtained his titles in 1825 and 1826. He died in 1838. He had prosecuted an action of ejectment in his lifetime, to which Hosea Smith, Sen., appeared as the defendant. In 1839, a scire facias on the judgment in ejectment was prosecuted by the devisees, and, in 1840, a writ of possession was awarded in said suit against Hosea.

In 1847, the plaintiffs, several of them being still infants, filed this bill. There were mistakes in the descriptions of the tracts, &c., in the proceedings at law, but those proceedings go to rebut a presumption of abandonment. S. Judah and I. Blackford, for the plaintiffs. J. G. Jones, for the defendants. We think the Court below erred in dismissing the bill as to all of the defendants. Per Curiam. The decree is reversed with costs. Cause remanded for further proceedings in accordance with this opinion. See, as to the certainty with which the property should be described in the levy, Throckmorton v.

Moon, 10 Ohio R. 42; Brown v. Dickson, 2 Humph. 395; Huddleston v. Garrott, 3 id. 629; Pound v. Pullen, 3 Yerg. 338; Waters v. Duvall, 6 Gill and Johns. 76. The R. S. 1852 enact that actions for the recovery of the possession of real estate shall be commenced within twenty years after the cause of action has accrued, and not afterwards, except in certain enumerated cases. R. S. 1852, p. 75, et seg. The R.

S. 1824, 1831, 1838, and 1843, enacted that no action of ejectment should be commenced or maintained, for the recovery of any lands or tenements, against any person or persons who might have been in the quiet and peaceable possession of the same, under an adverse title, for twenty years, either in his own right, or the right of any other person or persons under whom he claims. Certain exceptions are mentioned. The second

section of the act of 3 and 4 William, 4 of England, is as follows: “And be it further enacted, that after the 31st day of December, 1833, no person shall make an entry or distress, or bring an action to recover any land or rent but within twenty years next after the time at which the right to make such entry or distress, or to bring such action, shall have first accrued to some person through whom he claims, or if such right shall not have accrued to any person through whom he claims, then within twenty years next after the time at which the right to make such entry or distress, or to bring such action, shall have first accrued to the person making or bringing the same.” In Nepean v.

Doe, 2 Mees, and Welsby, 894, the Court say in reference to that act: “Ye are all clearly of opinion that the second and third sections of that act have done away with the doctrine of non-adverse possession, and except in cases falling within the fifteenth

section of the act, the question is whether twenty years have elapsed since the right accrued, whatever be the nature of the possessionThe third

section of that statute relates to the time when the right to bring the action shall be deemed to have accrued. The

section will be found at large in Greenl. Cruise on Real Property, vol. 3., p. 434. And in Culley v. Doe, 11 Adol. and Ellis, 1008, the Court, after reciting the second

section of the English statute above quoted, say: “ The effect of this

section is to put an end to. all questions and discussions whether the possession of lands, Sec., be adverse or not; and if one party has been in the actual possession for twenty years, whether adversely or not, the claimant, whose original right of entry accrued above twenty years before bringing the ejectment, is barred by this section.” See also notes to Nepean v. Doe, 2 Smith’s Lead. Cas. 464, et seq.

Erom the phraseology of the Statute of 1852, and the decisions under the English statute above quoted, it would seem to follow that, in Indiana, in an action for the'recovery of real estate, where the statute of limitations is pleaded, the question whether the possession has been adverse or not, is unimportant, except in certain cases to show when the right of action accrued, and, save in the enumerated cases which are exceptions to the general statute, the question is whether twenty years have elapsed since the right accrued, whatever he the nature of the possession.