Needham v. Webb

20 Ind. 213

• Court: Indiana Supreme Court
• Decided: May 15, 1863
• Status: Published

Opinion

Hanna, J.

Suit to set aside the title held by Sarah A. Webb to certain lands, and subject the same to executions held by the plaintiff' against Henry W. Webb, formerly the husband of said Sarah, and who was made a defendant with her.

The complaint charged fraud in the transaction by which the title was vested in her, and that said land was paid for by said Henry.

There were fifteen paragraphs in the answer of said Sarah, which allege, among other things, that said Henry, who failed to answer, had fraudulently combined with said plaintiff, and suffered judgment in his favor against him, said Henry, when in fact there was no indebtedness; that the land was paid for by her out of her own money; that said judgments against said Henry had been paid; that on, &c., whilst said Henry was solvent, and worth a large amount, to-wit: 6,000 dollars’ worth of property, he sold certain lands, in the deed to which she refused to join; that thereupon he agreed with her that 1,300 dollars should be vested in the purchase of a house and lot in Franklin, in her name and for her use, which was done, &c.; and 1,000 dollars was to be paid to her for her own use; that a note was given therefor, and with her consent afterward collected and invested in Iowa lands in her name; that said amount and proceeds of said house were continually vested in the lands now in controversy, &c.

The fifteenth paragraph is, that the land was purchased with the proceeds of the house in Franklin, held and owned by her in her own right; that said house and land were purchased for and in her name, with the knowledge, consent, approval and advice of the plaintiff', &c.

There was a reply to the answer of the defendants by paragraphs, except the fifteenth, to which no reply was filed. Trial, general verdict, and finding of special facts for defendant, Sarah. Motion for a new trial overruled; judgment, &c.

T. W. Woolen, for the appellant. F. M. Finch, G. M. Overstreet and A. B. Hunter, for the appellee.

The motion for a new trial is based upon erroneous rulings touching the introduction of evidence, and in giving and refusing instructions.

Before we proceed to consider the points made upon these rulings, we will notice a question raised on the failure to reply to the fifteenth paragraph of the answer. It will be recollected that the complaint charged that the land was conveyed to the female defendant with the intention of fraudulently preventing the collection of debts as against said Henry, &c. "Was the failure to reply to the said fifteenth paragraph of the answer an admission of the truth of the facts therein stated? and, if yea, what is the effect?

It is suggested that the failure to reply can not benefit the defendant as no motion was made to take a judgment on the pleadings. To this it is answered, that such motion was not necessary in view of the verdict in favor of the same party who might have made such motion.

It appears to us that if there had been a verdict for the plaintiff, he could not have taken a judgment thereon, in view of the proper objection, if taken, as to the pleadings; but let this be as it may, certainly in this instance, where the judgment upon the pleading, upon a motion therefor, would be to the same general effect as that upon the verdict; we are of opinion that the plaintiff can not avail himself of his failure to complete the issue on said paragraph, but by such failure admitted the matters there set forth; as such admission goes to the very substance in controversy, and as judgment on a motion, based on the pleadings, if made, would have been in accordance with that given by the Court, we shall not enter into an examination of the various errors assigned.

Per Curiam.

The judgment is affirmed, with costs.