#### W. A. Wathen et al *v. J.*C. Philips.

Costs, Against Defendant in Bill of Discovery.

Where a petition, in which several defendants are joined, merely calls on one of them to assert his claim to the property, if any, even though no answer he made, costs cannot be adjudged against him.

Fraudulent Conveyance — Purchase of Property by Son for Use of Parent.

Property purchased by a son, for the use of hh parent, cannot be subjected to the debts of the father.

APPEAL PROM MARION CIROUIT COURT.

October 26, 1871.

*52Opinion op the Count by

Judge Peyón :

The appellee Philips had an. execution issued upon a judgment in his favor against the appellant William A. Wathen for the sum of $818, with its interest, and placed in the hands of the sheriff of Marion county, and by him returned *“no property found”*and thereupon the appellee filed this petition in equity seeking to subject to the payment of this debt, a house and lot in the town of Lebanon, at the time in the possession of Wathen, and alleged in the petition to belong to him. The petition states that the appellant W. A. Wathen, for the purpose of cheating and defrauding his creditors, had procured his stepson S. P. Marion, to borrow of Thomas Liles executor’s a considerable sum of money for the benefit of him, Wathen, and for the purpose of buying this house and lot, and that although the deed was made to Marion, it was in fact the old man’s property bought with his money, and that Marion held the title for him, until by some arrangement between them, Marion conveyed the property to Robert Wathen a son of William A. Wathen, O. P. Marion, Robert Wathen and Thomas Liles Admr., were, all made defendants to the action and called upon to assert their claims upon the property, if any they have. Liles Admr. answers and says that the executors of Lisle have resigned and that he is the administrator with the will annexed of Thomas Lisle deceased, and as such, holds a note on Robert Wathen and C. B. Marion for $2,954.88, that this note was originally executed to the executors and by them handed over to him as administrator *de bonis non.*C. P. Marion files his answer disclaiming any interest in the property, and alleging that the wife of Wm. A. Wathen is his mother, that her husband had become insolvent and in order to provide a home for his mother he in good faith, and not at the instance of his stepfather purchased the property; that the money borrowed by hire of Lisle’s executors was $3000 for which he executed his note; that after he purchased the property he let Robert Wathen have it, upon his agreeing to pay off to Lisle’s executors the amount of the note for the borrowed money; that Robert Wathen then executed his note' for the money to Lisle’s executors and he, Marion, became his surety thereon and the note is yet unpaid. *53Robert Watben files bis answer in wbicb be claims to own tbe property, and' makes tbe same statements in regard to it, and' tbe manner of acquiring tbe title, as is set forth in tbe answer of bis co-defendant, Marion. Upon tbe bearing of tbe case tbe chancellor subjected tbe property to tbe payment of tbe appellee’s debt.' Tbe depositions taken in tbe case conduce strongly to show that in tbe years 1861 and 1862 about the time that Miller tbe partner of William Watben left tbe State, and went South, that Watben was left in tbe possession of considerable means both in money and property; that be shortly after made an assignment of bis effects for tbe benefit of bis creditors and that they realized a very inconsiderable sum out of tbe proceeds of tbe property assigned. What be did with tbe money, is involved in mystery, so far as this record shows. There is no proof that any portion of it was ever applied to tbe purchase of the property in controversy. Tbe petition alleges that tbe money to pay for this property was borrowed of Lisle’s executors. Both parties agree upon this fact. Lisle’s ’ administrator exhibits a note on Robert Wathen and Marion for near three thousand dollars. This note was banded him by Lisle’s executors upon their resignation as such. There has been only about $1200 paid on this note, and from tbe testimony in tbe case it was executed for tbe very money that purchased this property. Tbe court erred in excluding tbe deposition of C. P. Marion in tbe case. He bad no interest whatever in tbe controversy between these parties; no claim was asserted by him upon .the bouse and lot, and no judgment is asked against him in tbe plaintiff’s petition. If be bad failed to answer tbe petition it would have been error to have made him liable for costs, as to claim was asserted against him, but on tbe contrary be was called on to set forth tbe claim be bad upon tbe property, and be responded by saying that be bad none. We perceive no reason for excluding bis testimony. He swears that himself and James Watben borrowed tbe money originally from Lisle’s executors, that is, $2500; that be himself borrowed upwards of $3000.; that one thousand dollars of tbe money be paid down and for tbe balance be executed bis notes, and as they fell due they were paid by Robert Watben out of tbe borrowed money from Lisle’s executors, and that tbe note now held by Lisle’s administrator against him and Robert Watben is for tbe bor*54rowed money, and in this be is corroborated by tbe note itself, in tbe bands of tbe administrator of Lisle. Tbe only difficulty in tbe case is as to tbe payments on this note by Eobert Watben. Tbe payment .of $954 was not made until some time in 1868, and tbe proof shows tbat Robert was an active business young man, engaged in trading and doubtless in tbe three years after bis return from tbe army, bad accumulated enough means to make this payment. Tbe endeavor upon tbe part of the sons to secure a borne for their parents ought not to be seized upon as evidence of fraud in tbe absence of any evidence connecting tbe old man with tbe purchase in any way. There is no proof tbat be ever paid one dollar for it, or tbat he procured the borrowing of tbe money as alleged in order to make the purchase, but on tbe contrary tbe greater part of tbe money borrowed by Marion and Eobert Watben with which to pay for this property is still due, and they individually owe for it. For tbe reasons herein indicated tbe judgment of tbe court below is reversed so far as it subjects tbe bouse and lot to tbe payment of appellee’s debt and tbe court directed to dismiss tbe petition so far as it seeks to make the same liable therefor. Tbe judgment against Marion for costs is also erroneous and is reversed with directions to dismiss tbe petition as to him. We perceive no error in the court striking from tbe record tbe amended petition filed in vacation. Tbe amendment was filed. after tbe pleadings were all made up., and could not have been filed without leave of tbe court. Tbe case is affirmed. on tbe cross appeal.

*W. J. Lisle, for appellant.*

*B.ussell & Avritt, for appellee.*