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Fay v. Burditt.

out notice of the incapacity, and the contract itself was fair,either an actual restoration would be necessary, or, if that had become impossible, a just compensation instead ; and if neither restoration nor fair compensation could be accomplished, then, under the rule already stated, a disaffirmance would not be permitted.

If the other party to the transaction had notice of the disability, or the contract was unfair or fraudulent on his part, the party who had been under disability, except in case of a contract for necessaries, should be allowed to disaffirm upon restoring or offering to restore what he had received, or so much of it as remained in his possession or control after the disability was removed, and after he had become fully informed in reference to the contract and his rights and obligations under it; but further than this, he should not in such case be required to restore or make compensation for what he had received. If what he had received had been converted into something else, yet in his possession, he ought perhaps to surrender that to the other party.

These subjects, however, must be regarded as open for further consideration, as the questions may arise. They are not directly involved here.

It is insisted that the court erred in instructing “ that the plaintiff must have established by a preponderance of evidence that he was insane at the time he executed the note and mortgage.” “We have complained of this instruction," says counsel,“ because there is evidence in the record tending to show that he was insane prior to the execution of the note and mortgage, and the presumption of law is that the same condition of mind continues."

There was no error in the instruction. The presumption spoken of does not affect the burden of the issue. The plaintiff was bound to prove his insanity at the time of making the contract. This he might do by proving a prior in

a sanity of a character which was likely to continue, and the instruction says nothing to the contrary.

Fay v. Burditt.

The appellant asked the court to instruct that “If the plaintiff has established by a preponderance of the evidence that he was of unsound mind prior to the making of the chattel mortgage, then the burden of proof is cast upon the defendant to show that the plaintiff was of sound mind at the time of the execution of said mortgage,” etc.

The court properly refused so to instruct. It depends much on the character of the insanity proven, how strong the presumption of its continuance ought to be, and it is a question of fact, in view of the circumstances of the case, whether the disability, once shown to have existed, did in truth continue to the time in question. The burden of proving insanity at a time stated can not shift from the party who has alleged it. The proof of prior insanity may be, and unless controverted will be enough; but when all the evidence pro and con has been heard, including the prior insanity, which is only an item of evidence on the point, the decision must be against him who alleged the insanity, unless the preponderance of all the evidence was with him.

It may be doubtful whether it is quite accurate to say that the burden of a particular affirmative issue ever shifts in the course of a trial. The necessity for offering further evidence in respect to it may change from one side to the other, but this is quite a different thing from a change of the burden of the issue itself.

Where the issue is formed by the averment of facts on one side, and a denial thereof on the other, and the evidence is confined to the inquiry, whether the facts averred were true, it is plain that the technical burden of proof remains throughout with the party who affirms; but where, under the issue so formed, it is competent for the defendant, besides disputing the plaintiff's case, to admit it, and prove other facts in avoidance, as, for instance, in cases before or which originated before justices of the peace, and in actions for the recovery of possession of property, real or personal, there may be clearly a shifting of the burden of proof.

Fay v. Burditt.

Thus, in Meikel v. The State Savings Institution, etc., 36 Ind. 355, 359, it was said: “This making out a prima facie case by the evidence, and thus casting the burden of meeting it on the other side, occurs in every day practice.” And in Hayes v. Fitch, 47 Ind. 21, is quoted Sharswood's note to 1 Starkie's Ev. 587, which reads as follows: “If the defendant would show matter in avoidance, after a prima facie case has been made out by the plaintiff, the burden of proof shifts upon him."

The significance and correctness of this statement depend on the meaning to be attributed to the phrases “matter in avoidance” and “prima facie case.” So long as the dispute is concerning the prima facie case—the facts which constitute itthe burden is on the plaintiff, but when that case is conceded,' and matter in avoidance is sought to be shown, the burden shifts. But this, it is plain, is a shifting of the issue, as well as of the burden of proof. The first issue was the truth of the plaintiff's alleged case; the new issue is the truth of the proposed matter in avoidance.

As a general proposition, the burden of proof in respect to the different parts of a case may be determined by reference to the pleadings, the plaintiff being bound to prove, if denied, what he has affirmed in his complaint or reply, and the defendant what he has affirmed in his answer; but, beyond the reply, with which, under the code, pleading stops, the question must be determined by the nature of the evidence and its relation to the case, the burden of rebutting being on the defendant, of surrebutting on the plaintiff; and in actions of replevin, ejectment, or the like, wherein the pleadings do or may end with the complaint and an answer in denial, the burden of the evidence is upon the party who, if special pleading were required, would be bound to allege the particnlar matter sought to be proven. In some cases, as in Hayes v. Fitch, supra, and Uhl v. Bingaman, 78 Ind. 365, it may be necessary as a rule of pleading, for a party to negative his consent to an act, or notice of a fact, and yet he may not be

Stevens r. Works et al.

required to produce evidence on the point, it being sufficient for him to establish the affirmative matters of his plea, to avoid which the other party must prove the fact which the first had denied. In such case there is a shifting of the burden of proof; but it is not an exception from the proposition that the burden of proof does not change unless upon a corresponding change of the issue or affirmative matter in dispute. The second party does not deny the prima facie case, or, stated more accurately, the pro hac vice conceded case, of the first party; but, in avoidance of it, advances new matter, which he has the burden of proving, just as if he had pleaded it specially

The questions considered have been presented and argued in a variety of ways, but the points decided dispose of the merits of the case.

Judgment affirmed, with costs.
Opinion filed at No aber term, 1881
Petition for a rehearing overruled at May term, 1882.

81 445 133 281

No. 9183.

STEVENS v. WORKS ET AL.

FRAUDULENT CONVEYANCE.--Subsequent Creditor.--Costs.-- Execution.-- Where

one, already embarrassed beyond his ability to pay, in anticipation of a possible indebtedness for costs of a lawsuit which he afterwards commences, and for the purpose of evading payment thereof, conveys real estate to another, upon a secret arrangement that the latter shall pretend to own it, that it may escape execution, but hold it for the use of the grantor, and that his other assets shall be disposed of before the liability for costs shall accrue, it may be made subject to execution to satisfy a subsequent judgment for such costs, if other property can not then be found liable to execution.

From the Switzerland Circuit Court.
W. D. Ward and T. Livings, for appellant.
J. D. Works and J. A. Works, for appellees.

Stevens v. Works et al.

MORRIS, C.—The appellant commenced this suit against the appellees to set aside a conveyance of certain real estate on the ground of fraud.

The complaint consists of two paragraphs, to which demurrers were sustained. The appellant elected to stand by his complaint and final judgment was rendered for the appellees.

The rulings upon the demurrers are assigned as errors.

It will only be necessary to notice the second paragraph of complaint, for, if that shall be held to be sufficient, the judgment below must be reversed; if held insufficient, the first must also be held to be insufficient, as it is less full and complete than the second, and in that case the judgment must be affirmed. The second paragraph of the complaint states that on the

day of July, 1877, the appellee Thomas Works was the owner of certain real estate situate in the county of Switzerland and State of Indiana, which is particularly described; that said Thomas Works was also the owner of some land in Ohio county, Indiana, which was heavily incumbered by mortgage; that he had other real and personal property of the value of $1,500, in all of the value of $3,000; that he was indebted to divers persons in the sum of $5,000, and was then contemplating insolvency; that he then intended to, and soon thereafter, to wit, on the 3d day of September, 1877, did, bring a suit against the appellant for slander, in the Switzerland Circuit Court; that on the first named day or soon after bringing said action for slander, and while so indebted, it was fraudulently agreed by and between him and the appellee Addison Works, that the former should convey to the latter said land in Switzerland county; that the conveyance should be placed upon record, while, by a verbal agreement and understanding between them, the said Thomas was to remain the owner of said land and retain the possession of it as fully as if said conveyance had not been made; that they both should publicly announce and give out that

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