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114 Ind. 484

Plunkett v. Plunkett

Indiana Supreme Court

Decided June 26, 1888

Indiana Supreme Court · decided 1888-06-26

<p>FbauduIiENT Conveyance. — Subsequent Creditors. — Complaint.— Burden of Proof. — A complaint hy a subsequent creditor to set aside, as fraudulent, a conveyance of real estate made by his debtor, must aver an intention on the part of the grantor to defraud the plaintiff, or the class of creditors to which he belongs, and guilty knowledge on the part of the grantee, as in such case the burden of proving all that is necessary to establish the fraudulent intent rests upon the plaintiff.</p> <p>Same. — Secret Trust. — Statute Construed. — Section 4921, E. S. 1881, although not expressly so providing, applies to conveyances of real estate, and includes secret as well as declared trusts; and, under that section, where land has been conveyed to a third person in secret trust for the use of a. debtor, to whom the property really belongs, it may be reached by subsequent creditors and subjected to the satisfaction of their claims, and a complaint for that purpose will be good without an averment that the conveyance was made for the purpose of defrauding subsequent creditors.</p> <p>Same. — Judgment for Alimony. — A wife who has obtained a judgment for alimony is a subsequent creditor bf her husband within the legal meaning of that term.</p>

Relies on Pennington v. Flock

Good law ✅— No negative treatment on recordhow we know

Decided 1888-06-26

How this case has been cited

Cited by 12 later decisions — most recently March 1931

12 state decisions

60188818901900191019201930decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1On Petition eor a Behearing.

Niblack, C. J.

¶2The point is made, upon a petition for a rehearing, that the conclusion reached in this cause is inconsistent with the case of Pennington v. Flock, 93 Ind. 378, and others of our cases on the subject of fraudulent conveyances ; also, that we erred in holding that section 4921, B. S. 1881, embraces conveyances of real estate.

¶3If the complaint in this case had been an attack upon a *491conveyance upon the ground that it was fraudulent as against creditors existing at the time it was made, then the first point would be well taken and a rehearing ought to be granted. But a careful inspection of the opinion complained of will disclose the fact that the complaint was not, treated as an attack of that kind, but regarded as an application to reach property held in trust for the satisfaction of a debt subsequently contracted, under the provisions of section 4921 ; above referred to. We thought then, and still believe, that the fair inference from all the facts averred is, that Hamilton held, and still holds, the real estate in controversy in trust for the appellee, and not as an absolute and unconditional grantee under a fraudulent conveyance. As we intimated, we reached that conclusion, in part, from what the complaint in some respects implies, rather than directly avers. Upon further consideration, we feel quite assured that section 4921 includes conveyances of real estate held in trust for the grantor, or for him who causes the conveyance to be made.

Filed June 26, 1888.

¶4The petition for a rehearing is overruled.

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