Roberts v. The Farmers' and Merchants' Bank of Attica, Ind., et al. On July 12, 1891, which was Sunday, the bill of exceptions was presented to the judge and signed by him. On July 13, the bill was filed with the clerk, and on July 16 the bond was filed, all within the time allowed. Mary A. Roberts alone has assigned errors in the record. Nine such errors are assigned, but the questions discussed by counsel relate only to the sufficiency of the complaint and to the overruling by the court of the last motion for a continuance. The several complaints, which were substantially alike, and which were consolidated, consisted each of two paragraphs. In the first paragraph it was alleged that the appellees had recovered judgments, amounting to upwards of $6,000, against Joseph H. Roberts, husband of appellant, upon notes executed by him prior to May 18, 1889, which judgments, at the time of the commencement of the action, were in full force and effect, and entirely unsatisfied; that on said 18th day of May, 1889, Joseph H. Roberts was the owner of certain described real estate, situate in Fountain county, Indiana; that on said day the said Joseph H. Roberts, for the purpose and with the intent to hinder, delay and defraud his creditors, including the appellees, out of their debts, and to prevent the collection of the same, conveyed said real estate, by warranty deed, to one William M. Remington for the colorable consideration of $8,250, but, in fact, for no considération whatever, but in pursuance of an agreement by and between all the parties to said deed that the said Remington should convey the said land to the appellant, who was then and is now the wife of the said Joseph H. Roberts; that on said 18th day of May, 1889, in pursuance of said agreement, the said Remington did convey said real estate, by warranty deed, to appellant, for the Roberts v. The Farmers' and Merchants' Bank of Attica, Ind., et al. colorable consideration of $8,250, but, in fact, for no consideration whatsoever; that Joseph H. Roberts had not, at the time said conveyances were made, nor has he since had, nor has he now, sufficient other property subject to execution to pay his debts or any part thereof. Asking that the conveyance be set aside and declared null and void, and that the property be subjected to appellees' judgments, etc. In the second paragraph, the same allegations are made, except that no statement is made as to any consideration named in the deeds; but it is alleged, in addition, that at the time the deed was made to Remington, he had full knowledge of the fraudulent intent of Joseph H. Roberts in making the same, and that at the time the deed was made to appellant by Remington she had full notice and knowledge of the fraudulent intent of Joseph H. Roberts, and that she also had knowledge of the fraudulent intent of Joseph H. Roberts at the time said deed was made by him to Remington. Counsel for appellant, in their contention against the sufficiency of the first paragraph of the complaint, say that though it is alleged that she paid no consideration for the deed to her, yet if some one else paid the consideration, the conveyance would withstand the attack made against it. The first paragraph of the complaint, however, says expressly that the deed to appellant was made. "for the colorable consideration of $8,250, but, in fact, for no consideration whatever." The deed to Remington was also without consideration; and he, while a participant in the fraud, was simply a trustee to convey to appellant. In such case, the trustee takes no title, but the transaction is the same as if the conveyance had been made direct from the first grantor to the ultimate grantee. R. S. 1881, section 2981; Myers v. Jackson, 135 Ind. Roberts v. The Farmers' and Merchants' Bank of Attica, Ind., et al. But it has been frequently held by this court that where, in fraud of creditors, a conveyance is made to a wife without consideration, then, although she may not be actually a party to the fraud of her husband, yet she is affected by all the equities which might be enforced against him, and the conveyance will be set aside. Mendenhall v. Treadway, 44 Ind. 131; Spinner v. Weick, 50 Ind. 213; Spaulding v. Blythe, 73 Ind. 93; McAninch v. Dennis, 123 Ind. 21. As to the second paragraph, it is contended that it does not show by its allegations that the transactions sought to be avoided were not in good faith; that for aught that appears the conveyance might have been made in satisfaction of a prior bona fide indebtedness from the grantor to appellant. The second paragraph, however, not only alleges that the conveyances were made to defraud creditors, but alleges that appellant was a party to that fraud, with full notice and knowledge. In such case, the conveyance is clearly fraudulent, and will be set aside, even if there be valuable consideration. R. S. 1881, sections 4920, 4921, 4922, 4923; Bishop v. Redmond, 83 Ind. 157; Seivers v. Dickover, 101 Ind. 495; Wait Fraud. Conveyances, sections 192, 193. Both paragraphs of the complaints were good. As to the alleged error of the court in overruling appellant's last motion for a continuance, it may be still said, as it was by DEWEY, J., in Pine v. Pro, 6 Blackf. 426, that "The propriety of refusing or granting continuances depends so much upon the discretion of the court to whom the motion is made, that it must be a very strong case which would induce this court to revise a decision on that subject." In this case the cause had been continued from term to term for over a year; a change of venue had been once taken, but not perfected, and for so clear a case it Roberts v. The Farmers' and Merchants' Bank of Attica, Ind., et al. must be admitted that the delay was unusual, and without cause, so far as the record discloses, until the filing of this affidavit. The affidavit shows sickness of the appellant from the 10th of April. The affidavit was presented on May 19th, after the case was called for trial. As that day was fixed for the trial on April 29th, there seems no sufficient reason why notice of the sickness should not have been given on April 29th, or why appellant's deposition should not have been taken during the three weeks from April 29th to May 19th. Appellant's husband was her codefendant, and was present at the trial, and the affidavit discloses no evidence that he could not give as well as she. But whether there was in fact any want of discretion by the court in refusing a continuance as asked, we need not decide, for we do not think that the affidavit for a continuance is in the record. The bill of exceptions containing the affidavit closes with this statement: "And now the defendants bring this, their bill of exceptions. number one, and ask that the same be signed, sealed and made a part of the record in said cause, which is accordingly done, this 12th day of July, 1891," followed by the judge's signature. This court judicially knows that the 12th day of July, 1891, was Sunday. Chrisman v. Tuttle, 59 Ind. 155; Swales v. Grubbs, 126 Ind. 106. A work of necessity, done on Sunday, is not unlawful. In this case it does not seem that the presentation and signing of the bill of exceptions was necessary on that day. The sixty days allowed by the court for this purpose would not expire until July 18, six days after the day on which the bill was presented and signed; and no emergency is disclosed in the record which would show the necessity of presenting and signing the bill of exceptions on Sunday. Whether a bill of exceptions might, Kennedy et al. v. Warnica et al. in any case, be presented and signed on Sunday, we need not decide. In this case the act was unlawful. Link v. Clemmens, 7 Blackf. 479; Reynolds v. Stevenson, 4 Ind. 619; Shaw v. Williams, 87 Ind. 158; Butler v. Kelsey, 15 Johns. 177; Field v. Park, 20 Johns. 140; Chesapeake, etc., Co. v. Bradley, 4 Cranch C. C. 193; Moore v. Hagan, 2 Duv. (Ky.) 437; Anderson v. Birce, 3 Mich. 280; Peck v. Cavell, 16 Mich. 8. We have found no available error in the record. MCCABE, J., took no part in the decision of this cause. No. 16,469. KENNEDY ET AL. v. WARNICA ET AL. DEED.-Action to Set Aside.-Duress.-Husband and Wife.-Statute of Limitations. The first wife of A. owned land in her own right, and in November, 1864, under threats that he would kill her if she refused to convey the same, she executed a deed, her husband joining, to B., without consideration, the premises thereafter to be conveyed to A. on his request. The deed was recorded, and the title held by B. until his death, in 1878, when B.'s heirs conveyed the same to A., and he, in 1881, to his second wife, without consideration. Under like threats A.'s first wife kept secret the alleged duress in respect to the execution of such conveyance, never revealing the same, and she died in 1880, and her heirs brought suit to set aside her deed, etc., alleging, in substance, the above facts, and that they discovered the alleged fraudulent conduct within the last six years. Held, that as the complaint does not show any active concealment of the cause of action by A., and as the heirs of A.'s first wife stand in her shoes and are chargeable with her knowledge of the fraud, her disability being removed by death, and the heirs failing to prosecute the action within two years, they are barred by the statute of limitations. VOL. 136--11 |