Phillips v. Kennedy

Decided December 20, 1894

Indiana Supreme Court · decided 1894-12-20

<p>Fraudulent Conveyance. — Husband and Wife Joining in Conveyance of Husband’s Lands for the Purpose of Betaking it as Tenants by Entireties. — Exemption from Execution. — Where A, his wife joining him, conveys land held by him in fee simple to B, without consideration, who, according to agreement, immediately reconveys the same to A and wife as tenants by entireties, A not having property left, over and above Ms legal exemptions, to pay Ms unsecured debts, such conveyance was fraudulent as against such debtors, and may be set aside.</p> <p>Same. — Special Finding. — Fraud as an Ultimate Fact. — Recovery.— In an action to set aside a fraudulent conveyance, where the facts are specially found, there can be no recovery in the absence of a finding of fraud as an ultimate fact.</p>

Good law ✅— No negative treatment on recordhow we know

Decided 1894-12-20

How this case has been cited

Cited by 4 later decisions — most recently November 1913

4 state decisions

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 foe a Reheaeing.

Howard, J.

¶2The appellees have filed a petition and brief for a rehearing of this case, and also a motion to modify the mandate.

¶3Nothing in the courteous argument of the learned counsel has satisfied us that the opinion is incorrect as to the merits ®f the case. The transactions complained of certainly showed fraud as to appellant’s debt.

¶4The petition for a rehearing is overruled.

¶5But, on reflection, we are of opinion that the mandate should be modified as prayed for. The court did not find fraud as an ultimate fact; though, as we think, it should be inferred from the facts found. The facts as found, however, in the absence of a finding of fraud against appellees, will not support a judgment against them.

¶6The mandate is so modified, therefore, that the judgment is reversed, with instructions to grant a new trial, and for further proceedings not inconsistent with this opinion.