Lord v. Bishop

Mitchell, J.

The controversy between the parties to this record was considered by this court in the case of Bishop v. State, ex rel., 83 Ind. 67, where the facts are fully detailed.

A second trial was had by the court, resulting in a finding and judgment for Mrs. Bishop, her husband having died after the former appeal was determined and before the second trial.

It is now argued that the finding of the court is not sustained by the evidence, and it is also contended that the court erred in some of its rulings during the progress of the trial, in respect to the admissibility of evidence.

The appellee makes the point that none of these questions are in the record, and that, therefore, this court can not examine them.

It is not made to appear by direct statement in the record, that the short-hand reporter was duly appointed and qualified as such, but this may be inferred from the fact that it is certified by the clerk that the manuscript containing the evidence, which was filed in his oifice, was “ furnished by Ira A. Kilbourne, short-hand reporter of said court,” and inasmuch as this long-hand manuscript is incorporated in a bill of exceptions, duly signed by the judge, containing a statement that “ this was all the evidence given in the above entitled cause,” it fairly complies with the statutory requirement.

The appellant, a creditor of Ira Bishop, brought the action to set aside a conveyance which was made to Margaret Bishop of 160 acres of land in the year 1877. The evidence tended to prove that in the year 1844 Mrs. Bishop’s mother, Mrs. McCann, delivered a sum of money to Ira Bishop, who was the husband of Margaret Bishop, and directed him to proceed to the “ Indian Reserve ” and enter two tracts of land adjoining each other, one for her daughter Margaret, the other for her son Patrick. Mr. Bishop received the money, proceeded-to the “reserve,” and entered two adjoining tracts of land containing eighty acres each, taking the title to one in his own name, and the other in the name of Patrick McCann. Subsequent to this Patrick McCann exchanged his eighty on the Indian Reserve, in Howard county, with Mrs. Bishop, for her interest in some lands in Rush county which she inherited from her mother. This was also conveyed to her husband. The husband paid no part of the consideration for either tract, and the evidence tended to show that his wife had no knowledge of the fact that the title to either tract was taken in his name.

It is inferentially conceded that as to thq eighty acres obtained by the husband in exchange for his wife’s interest in' the Rush county lands inherited from her mother, the finding and judgment below was right, but it is argued that because the wife did not herself directly furnish the money to buy the first eighty, it therefore results that the finding and judgment is not sustained by the evidence. We do not concur in this view of the matter.

The evidence shows that Mrs. McCann furnished her son-in-law with money and instructed him to purchase the land for her daughter, his wife. It was intended that the wife should be the beneficiary in the fund so furnished. Taking the title in his own name made the husband as much her trustee as though he had received the money directly from his wife’s hand. It was not for the husband to take to himself the benefaction which the mother intended to bestow upon her daughter, and his creditors can stand in no better attitude than he stood himself. Brookville Nat’l Bank v. Kimble, 76 Ind. 195; Perry Trusts, section 127.

That the husband spent his time and labor in clearing and improving the land, and that he paid the taxes, does not alter the case. The fact remains that it was the wife’s land, and he could not improve it away from her.

That he did not repair the wrong originally done to his wife until he found himself involved in debt, can not defeat her right to enjoy her own property.

The husband of Mrs. Bishop became the administrator of his father’s estate, and while administering upon that estate, he caused the land acquired as above detailed to be conveyed through a third person to his wife. It is probable that he was at that time in default as administrator. A judgment was recovered against him afterwards in favor of the estate, and we are now earnestly solicited to reverse the judgment of the court below, so that the loss of the estate may be made good.

However grossly the deceased husband may have violated his trust as administrator of his father’s estate, and however imperative the duty which rested upon him to perform his obligation to those interested with him in it, the finding of the court below, which is also sustained by the evidence, shows that he violated a trust in taking the title to his wife’s land in his own name, and having chosen to rectify that by causing what was equitably hers all the time to be conveyed to her, there is no rule of law or equity which would justify a court in taking her property to pay a debt of her husband’s, however sacred. We find no error in the record.

Filed April 7, 1885.

Judgment affirmed with costs.