Moore, Administrator, v. Lampton et al. that at the time the husband had not other property sufficient, etc., and that, knowing of the husband's fraudulent purpose, she participated or acquiesced in it. Quare, whether, if the wife was party to the fraud, the creditor could have a remedy against her real estate. From the Clark Circuit Court. J. B. Merriwether, for appellant. WOODS, J.-The appeal is from the judgment of the court sustaining a demurrer for want of facts to the appellant's complaint. The appellant sued as the administrator of the estate of George W. Lampton, alleging, in substance, the following facts, to wit: That George W. Lampton died intestate in October, 1869, and the defendant Benjamin F. Lampton intermeddled and converted a part of the estate to his own use, for which the plaintiff sued him, and on the 14th day of January, 1873, recovered judgment against him in the court of common pleas of Clark county, in the sum of $220, and costs of suit, which judgment is still unpaid, execution thereon having been issued at the plaintiff's instance on the day of ——— 1873, which was returned by the sheriff of the county unsatisfied; that, at the time of his said intermeddling, the said defendant was the owner in fee simple of 173 feet off of the east side of lot No. 215, in the city of Jeffersonville, which was unimproved; that afterwards the defendant sold said ground to Maria L. Hardy, who again sold it to the defendant Ellen Lampton, the wife of said Benjamin, it being yet unimproved and worth no more than $200; that afterwards, in March, 1870, said Benjamin F. Lampton, with his own money and means, improved said lot by erecting thereon a house and out-houses and fences to the amount and value of nine hundred dollars. That the liability of said Benjamin to said estate upon which said judgment was obtained, accrued in October, 1869; that, after he had expended his money and means in improving said lot, he had no property subject Moore, Administrator, v. Lampton et al. to execution and was insolvent, and has been so ever since; that, in so expending his means upon his wife's property, his purpose was to hinder, delay and defraud his creditors, and the expenditure was made without consideration. Wherefore the plaintiff prays that said property be sold, and from the proceeds there be paid, first, the $200, the value of the lot, and, second, the plaintiff's judgment, interest and costs. Irrespective of the question whether creditors may in any way reach the wife's real estate, on account of improvements made by the husband by an expenditure of his means in fraud of his creditors, the ruling of the court in this case was right. It is not averred that at the time when the improvements were made, the husband had not ample property for the payment of all his debts, or liabilities, subject to seizure and sale. upon execution. Such an averment is clearly necessary. Bruker v. Kelsey, 72 Ind. 51, and cases cited. Neither is it averred that the alleged fraudulent purpose of the husband, or the fact of his indebtedness and insolvency, were known to the wife. Without such knowledge and an averment that the improvement was made with her knowledge, she participating, or at least voluntarily acquiescing, in the fraudulent purpose of the husband, it can hardly be claimed successfully that her property or the improvements made upon it, or the rents and profits thereof, could be reached by the husband's creditors. In the case of Behler v. Weyburn, 59 Ind. 143, a case which has been often cited with approval, it was held that a married woman, in this State, had no power to encumber or convey her lands except by deed, in which her husband should join, and consequently that she could not bind herself in respect to her real estate by an estoppel in pais. The logical sequence of this ruling would seem to be, that even an active participation by the wife in accomplishing the husband's purpose to defraud his creditors, by expending his means in the improvement of her property, would furnish no ground of relief either against her or her property. See Corning v. Fow Reed et al. v. Hodges. ler, 24 Iowa, 584; Webster v. Hildreth, 33 Vt. 457; Washburn v. Sproat, 16 Mass. 449; Keeney v. Good, 21 Pa. St. 349; Barto's Appeal, 55 Pa. St. 386; Robinson v. Huffman, 15 B. Mon. 80. Contra, Lynde v. McGregor, 13 Allen, 182; see also Cooper v. Ham, 49 Ind. 393. Counsel for the appellant has placed before us a copy of a recent decision of the Court of Appeals of Kentucky, in the case of Heck v. Fisher, 78 Ky.643; but even upon the authority of that case, which contrary to Behler v. Weyburn, supra, recognizes the power of a married woman to bind herself by estoppels in pais in reference to her real estate, the complaint is not good. It was not held in that case that the property could be sold, but only that a receiver might be appointed to rent it out and pay to the appellant, in satisfaction of his debt, the proceeds of the rent in the proportion that the improvements enhanced the value of the property; and this conclusion was reached on the ground that the wife was a party to the fraud, the court saying: "While the rights of married women are jealously watched over by the courts, they will not permit coverture to be used as a cloak for fraud, even when the feme covert is a quiescent and not an active participant in its perpetration." Judgment affirmed, with costs. Howk, J., absent. No. 9023. REED ET AL. v. HODGES. VENDOR AND PURCHASER.-Title Bond.-Husband and Wife.-Deed.-Demand.-Heirs.-Upon a bond executed by a husband and wife, conditioned for a conveyance of land to a purchaser only upon the death of both husband and wife, the purchaser can not obtain a conveyance by suit against the heirs and wife, upon the death of the husband, the wife be ing still alive, even though the latter consent to it. A demand is also necessary. From the Lawrence Circuit Court. Reed et al. v. Hodges. N. Crooke, G. Putnam, G. W. Friedley, I. Herr and D. S. Alexander, for appellants. ELLIOTT, C. J.-Stephen Hodges alleges in his complaint that he bought of Moses Hodges a parcel of real estate; that the vendor and his wife joined in executing to him a bond for the conveyance of the property purchased; that since the execution of the bond Moses Hodges has died; that the appellants are his heirs; and that he, the appellee, has paid the purchase-money in full. Prayer for the appointment of a commissioner to execute a deed to the appellant for the land purchased by him. The bond set out in the complaint contains this provision: "Now, in consideration of the premises, said parties of the first part bind themselves, their heirs, and legal representatives, that a good and sufficient deed in fee simple shall be executed to said Stephen, upon the death of both said Moses Hodges and his wife, Mary Hodges." It is very clear that the appellee is not entitled to a deed until the death of Mary Hodges. As the complaint affirmatively shows that she was living at the time the action was commenced, it appears that appellee has no cause of action. It is an elementary principle that the plaintiff must not only have a right of action, but a complete right of action at the time his suit is commenced. The complaint is bad. It has long been the rule in this State, that a vendee praying specific performance must show a demand for a deed prior to the commencement of his suit. Sheets v. Andrews, 2 Blackf. 274; Brown v. Hart, 7 Blackf. 429; Mather v. Scoles, 35 Ind. 1. The complaint does not show a demand, or an excuse for not making one, and is, therefore, defective for this reason. The counsel for appellee have not briefed the case, and we are unable to discover any ground upon which the action of the court in overruling the appellants' demurrer to the complaint can be sustained. VOL. 80.-20 Reed et al. v. Hodges. We do find in the record an answer from Mary Hodges, in which she disclaims any interest in the land, and requests that a deed may be made to the appellee. This does not cure the defect in the complaint in so far as the other heirs of Moses Hodges are concerned. They have a right to insist that the appellee shall show by his complaint that he is entitled to a deed. As against them, the appellee must recover upon the allegations of his complaint. It is a familiar principle that a plaintiff must recover according to his allegations, and that where a demurrer tests the sufficiency of his complaint, subsequent acts of persons other than those demurring, can not affect the question of the sufficiency of the pleading. If the appellee desired to place his right to relief upon the ground that Mary Hodges had consented to the execution of a deed, he should have averred it in his complaint. The bond prescribes the terms upon which the appellee shall be entitled to a deed, and he can not obtain one upon any other. Appellees have succeeded to the rights of their ancestor, Moses Hodges, and have a right to resist the execution of a deed until the terms and conditions of the bond have been fully complied with. Their rights are entirely distinct from those of Mary Hodges, and she can not divest them. She can no more deprive them of these rights than she could have done her husband of his. The provision in the bond, that no deed should be made until both obligors are dead, can not be waived by one of the joint obligors in opposition to the claims of the heirs of the deceased obligor. They have a right to the enforcement of the bond, and this is a right of which no third person can deprive them. If what appears in the answer had been alleged in the complaint, it would not have cured the defect. This is plainly so, for it would then have still more clearly appeared that the contingency upon which depended the appellee's right to a deed, had not happened. We may remark, in passing, that there is nothing to show that the provision of the bond, that no deed should be made until after the death of both Moses and Mary Hodges, was |