Milburn v. Phillips et al.

said Gher assigned the certificate to Simon Foulke, who, after the year for redemption had expired, obtained a sheriff's deed therefor, and the appellee Phillips was evicted, and the premises taken from her.

It is also conceded, that on September 11, 1888, and for a long time prior thereto, continuously, Joseph E. Milburn was the owner of 160 acres of real estate described in the complaint in this action, which includes the land in controversy, and was of the value of $40 per acre, and that on said day he conveyed the same to his son Robert, appellant herein; that there was a consideration of $5,000, expressed in the deed, and that Joseph's wife did not join therein.

It was admitted by the parties to this suit, for the purpose of the trial, that appellant had, at the time of this conveyance, aside from the debt which his father owed him, property of the value of $400, and that he was a resident householder of the State, and that after the transfer said Joseph was possessed of property of the value of between $300 and $400, and that he was a resident householder of the State; that the deed to appellant was not recorded until April 10, 1889.

No sum of money was ever paid by the grantee, for the land, and no notes, mortgage, or other evidences of indebtedness, were executed therefor; but the deed states a consideration of $5,000.

After the conveyance to appellant, he allowed the west eighty of the tract to be sold to pay a ditch assessment of $85; he paid no taxes, but suffered the east eighty to be sold by the county treasurer in satisfaction of taxes, all of which indicate that grantee was insolvent. The facts further show that while appellant assumed that his father owed him prior to the conveyance and that he received the deed, to discharge, in part, a preëxisting debt, the

Milburn v. Phillips et al.

appellant testified that he never filed with the assessor any such credit.

This statement is important. If appellant gave a true list to the assessor, of all his personal estate and choses in action, he had no claim against his father. The jury would have a right to believe that he was assessed upon all of his property. Towns v. Smith, 115 Ind. 480 (483); Lefever v. Johnson, 79 Ind. 554.

The statement contained in the assessment list can, with propriety, be looked to to ascertain what particular personal property, or claims, a person owns at the time, and, in the absence of controlling proof, his condition is presumed to have remained the same when the conveyance was made. Adams, Assignee, v. Slate, supra; Towns v. Smith, supra.

The evidence of Isaac Wainscott shows that prior to the conveyance to appellant, the grantor told him, "He was going to have his son come onto the farm; that it would pay him better than to run it himself." "He thought this plan would pay his debts more rapidly." "He was in debt, and he wanted to get out." "That he thought the Phillipses would not make their money out of this land."

Witness also testifies to being in possession of the farm in controversy as tenant of Joseph E. Milburn, who, in February, 1889, signed and served upon him a written notice to quit the possession.

Frank Caldwell testified, that he and the appellant rented this farm of Joseph in the fall of 1888; that appellant gathered his share of the corn, and the oats were turned over to the father. Robert told this witness that his father deeded him the land, and had nothing of his own, and that he did not intend to pay the Phillips debt if he could help himself.

Milburn v. Phillips et al.

William Crouch says Robert told him he was going to run the farm and fix it up.

There was evidence that the father was exercising possessory acts over the farm long after the son claimed to have procured a deed for it, and the witness Frank Culver testified, in substance, that a short time before hay harvest, in 1890, Robert said to him that he had no hay to put up on the shares, but his father had, identifying the hay and locating the meadow on the land in dispute.

Taking all the facts together, which the evidence adduced tends to prove, a fair inference might be drawn that it was the intention of the father, shared in by the son, that the claim of Mrs. Phillips should not be paid; that, to accomplish such purpose, the transfer of the real estate was made, and that the son was placed in possession of the land merely as his father's tenant. We attach no importance to the recital in the deed that the consideration is $5,000. This is not an action between the grantee and the grantor, or any of the heirs or privies of the grantors, but it is one between the creditors of the grantor and the grantee, and, hence, the consideration expressed does not constitute prima facie evidence against the appellees.

2 Warville on Vendors, section 19, p. 622, reads: "Nor will one who takes land as a volunteer, although without notice of the equities of others, be protected against third parties claiming equitable rights. He must prove that he paid the purchase-money, and this, independently of the recitals in his deed.

"There must be evidence dehors the instrument." Baskins v. Shannon, 3 Com. 310.

The same motive which would induce a party to execute a fraudulent conveyance would induce him to insert and acknowledge a receipt of payment.

Milburn v. Phillips et al.

"The recital of consideration in the deed can not be considered as evidence against creditors, for they are strangers to the transaction." Allen v. Cowan, 28 Barb. 99; Bump on Fraud. Conv., p. 554; Wait on Fraud. Conv., section 220; Devlin on Deeds, sections 818 and 819; Peck v. Mallams, 10 N. Y. 528.

Appellants and appellees in this case all trace their claim of title to a common source.

Where both plaintiff and defendant claim title from a common source, the plaintiff is only required to prove such source of title. 6 Am. and Eng. Encyc. of Law, p. 524.

Appellant's contention that a party must recover, if at all, on the theory of at least one paragraph of his pleadings, is sound law. McAroy v. Wright, 25 Ind. 22; Paris v. Strong, 51 Ind. 339; Boardman v. Griffin, 52 Ind. 101; Terry v. Shively, 64 Ind. 106; City of Huntington v. Mendenhall, 73 Ind. 460; McConnell v. Citizens' State Bank, etc., 130 Ind. 127, 27 N. E. Rep. 616.

But the cases cited do not apply to the facts in the case now under consideration. The supplemental crosscomplaint makes an action of ejectment to which the proofs were directed.

Appellant availed himself of this, in the court below, when he secured himself a new trial as of right. The record shows that the sheriff had the land appraised prior to the sale, but did not have the rents and profits appraised. He offered the rents and profits, and, receiving no bid, offered the fee-simple. We think this vitiated the sale.

In Davis v. Campbell, 12 Ind. 192, the court says: "Where property can not be sold by the sheriff without appraisement, it can not be legally offered for sale without appraisement. Such an offer would be a vain act, which no bidder could be expected to notice."

The force of the decision is that where the judgment did not direct a sale of real property, by the sheriff, without appraisement, and the rents and profits were offered for sale without appraisement, and, no bid being received, the fee-simple was sold, there was no valid offer of the rents and profits, and the sale of the fee-simple was, therefore, erroneous.

In this connection see also R. S. 1881, section 754; Indiana, etc., R. W. Co. v. Bradley, 15 Ind. 23; Tyler v. Wilkerson, 27 Ind. 450.

It is urged by appellee, that the sale was made by virtue of clause 2 of section 752, .R. S. 1881: "Lands fraudulently conveyed with intent to delay or defraud creditors."

If this were true, the provisions of section 743, R. S. 1881, would apply, which reads as follows: "Property conveyed by a debtor, with intent to hinder, delay, or defraud creditors, shall be sold without appraisement."

In our opinion, these sections can have no application to the case at bar, in which there was an ordinary judgment rendered in an action for breach of the covenants of warranty, an execution issued thereon, and the premises sold to appellee before an order had been made decreeing the previous sale and transfer to appellant fraudulent.

This court, in Mugge v. Helgemeier, 81 Ind. 120, carried the rule to its utmost limit in holding that "real estate, which the debtor has conveyed or caused to be conveyed with intent to defraud his creditors, may be sold without appraisement," there having been an adjudication that the conveyance was fraudulent, although the original judgment and execution had not so provided.

The equities in this case appear to be with the appellee. She lost her land in a foreclosure suit to collect a