ON PETITION FOR REHEARING. Appellees, in petitioning for a rehearing, contend that we erred in stating that this is an appeal from a decree quieting their title to the land in controversy and that the action was being prosecuted by them to set aside a fraudulent conveyance. They now contend that the first and third paragraphs of their complaint were in ejectment; that the second was to quiet title, and that the judgment was in ejectment, and that there was no decree quieting their title.
The third paragraph of complaint alleged that in April, 1919, appellees recovered a judgment in the Hamilton Circuit Court against appellant John T. Richardson and Harmon E. Newman, on which, in December, 1921, execution was issued to the sheriff of Boone county, who levied upon and sold the land in controversy to appellees, who later received a sheriff's deed therefor; that when said judgment was rendered in the Hamilton Circuit Court, John T. Richardson owned certain land in Boone county which he in June, 1919, and after the rendition of their judgment, sold, and that in February, 1920, he purchased the land in question, and, for the purpose of cheating and defrauding appellees and preventing them from collecting their said judgment, *Page 238 caused the title to the land so bought by him to be taken in the name of himself and his wife, Mary E. Richardson, by the entireties. This complaint alleged facts sufficient to make a good complaint to have the conveyance to appellants by the entireties set aside and to have the land so held by appellants subjected to the judgment and sale to appellees, because of the fraud of appellants, and appellees asked that they be declared to be the owners of said real estate by virtue of said sheriff's deed and for possession of the same.
Appellees tried this case upon the theory that it was necessary for them to prove that the action of appellants in taking title to the land in controversy was fraudulent as to them and that when the land was sold to them by the sheriff, appellant John T. Richardson was, in fact, the equitable owner thereof, although the legal title was in him and his wife by the entireties. Not only was the case tried upon that theory, but appellants and appellees briefed the case in this court upon that theory, and we decided the same upon the theory that it was in reality an action to have the conveyance to appellants by the entireties vacated for the purpose of subjecting the same to sale to satisfy appellees' judgment.
In order to authorize a decree in favor of appellees upon either paragraph of their complaint, it was necessary for them to show that a fraud had been perpetrated upon them, and that 2. they were prevented from collecting their judgment which had been rendered against John T. Richardson and Harmon E. Newman, as partners. For the reason pointed out in the principal opinion, the evidence was not sufficient to sustain the decision of the court upon either paragraph of the complaint.
Petition denied. *Page 239