
    Stuckwisch et al. v. Holmes.
    [No. 4,257.
    Filed October 7, 1902. ]
    Fraudulent Conveyance.— Complaint. — Insolvency of Defendant.— Levy by Constable. — An allegation in a complaint, in an action to set aside a conveyance of real estate as fraudulent, that plaintiff obtained a judgment against defendant before a justice of the peace upon which an execution was issued and placed in the hands of a constable who returned the writ indorsed “ No property found,” was not a sufficient allegation of defendant’s insolvency ; since a constable has no authority to make a levy upon real estate.
    From Marion Circuit Court; H. C. Allen, Judge.
    Action by Ira M. Holmes against Mary R. Stuckwisch and others to set aside a conveyance of real estate as fraudulent. From a judgment for plaintiff, defendants appeal.
    
      Reversed.
    
    
      W. B. Schwartz, for appellants.
    
      Ira M. Holmes and Gr. O. JDix, for appellee.
   Wiley, C. J.

This cause was transferred from the Supreme Court.

Appellee was plaintiff, and sued appellants to set aside a conveyance of real estate as fraudulent and to subject the same to the payment of his debt. A joint demurrer to the complaint was overruled, and also appellants’ motion for a new trial. By the assignment of error, these rulings are challenged, and they are the only questions for decision. The complaint avers that appellee recovered a judgment before a justice of the peace in Marion county against appellant Mary R. Stuckwisch; that he caused to be filed in the clerk’s office of the Marion Circuit Court a transcript of said judgment; that at the date of the rendition of said judgment, said judgment defendant owned certain real estate in said county, which said real estate is specifically described; that prior to the filing of said transcript, but subsequent to the rendition of said judgment, pursuant to a fraudulent combination between tbe said Mary, her bus-band, and her son Henry, tbe said Mary and ber husband conveyed said real estate to ber son Henry, with tbe fraudulent intent to hinder and defraud ber creditors, and that tbe said Henry accepted said conveyance with a full knowledge of said judgment, and knowingly and with intent to binder and defraud tbe creditors of said Mary. It is also' averred that there was no valuable consideration for said conveyance; that appellee procured to be issued upon said judgment an execution; that said execution was placed in tbe bands of a constable and was by him returned "nulla bonaTbe prayer of tbe complaint is that tbe said conveyance be set aside and the real estate subjected to tbe payment of appellee’s judgment.

It will be observed from tbe material averments of tbe complaint, as recited, that there is no averment that appellant Mary R. Stuckwisch was insolvent at tbe time of tbe conveyance, nor that at tbe time of tbe conveyance, and when tbe action was brought, she did not have enough property subject to execution to pay ber debts. It can not be successfully contended that because it is shown that an execution was issued by tbe justice of tbe peace, placed in the bands of a constable, and be returned it indorsed “Ho property found,” that this is a sufficient allegation of insolvency, or that tbe judgment defendant did not have, when the conveyance was made, and when tbe action was commenced, enough property, subject to execution, to pay ber debts.

A constable has no authority to levy an execution upon real estate. His power is exhausted when be fails to find personal property upon which to levy. It does not necessarily follow that, because be found no personal property upon which to levy, tbe judgment defendant did not have real estate subject to execution. Ample provision is made by statute, §626 Burns 1901, by which an execution may be issued by the clerk of the circuit court upon a judgment, a transcript of which has been duly filed in his office. If a debtor has sufficient property, subject to execution, to pay his debts, after making a conveyance of real estate, such conveyance will not be regarded as fraudulent. A person may make such disposition of his property as he pleases, so long as he does not deprive others of any rights they possess. It has been repeatedly held that in an action by a creditor to set aside a conveyance as fraudulent it must be alleged in the complaint that at the time of the conveyance, and when the suit is brought, the debtor did not have enough property, subject to execution, to pay his debts. Brumbaugh v. Richcreek, 127 Ind. 240, 22 Am. St. 649; McConnell v. Citizens State Bank, 130 Ind. 127; Line v. State, ex rel., 134 Ind. 468; Winstandley v. Stipp, 132 Ind. 548; Crow v. Carver, 133 Ind. 260; Petree v. Brotherton, 133 Ind. 692; Wilson v. Boone, 136 Ind. 142.

The complaint is fatally defective in failing to make these necessary averments. Judgment reversed, and the trial court is directed to sustain the demurrer to the complaint.  