On petition por a rehearing.
Biddle, J.The appellant petitions us to pronounce an opinion upon the sufficiency of the complaint in the proceedings sought to be reviewed.
No demurrer was filed to this complaint, and, as the demurrer filed to the cross complaint would not reach the original complaint, it appeared at first view, that no question ivas reserved against the complaint in the original proceedings; but, as the sufficiency of that complaint could be questioned in this court *154by ail assignment of error, we think its insufficiency, although it was not demurred to, might be a ground to review the proceedings. We therefore think it better, as future proceedings in the court below are to be had, to decide the question.
The deeds attacked, as being fraudulent against the creditors of Joshua K. Harlen, are alleged to have been made on the 21st and 24th days of October, 1868. Some of the debts sought to be paid out of the lands so conveyed are alleged to have existed before the deeds were made; and it is averred that certain judgments had been recovered since that date, upon debts due before the deeds were made. On some of the judgments a return of “ no goods ” had been made. It is necessary in a complaint of this character, that it contain an averment that the debtor had no other property subject to execution at the time the deeds alleged to be fraudulent were made, or same equivalent averment, as that he was insolvent at that time. In the complaint we are considering the averment is, “ that the said Joshua K. Harlen, Sr., is wholly insolvent, now is and has been from the rendition of all of said judgments, and up to this time, except the land before mentioned.” As these judgments were recovered after the deeds were made, we do not think this averment sufficient. Sherman v. Hogland, 54 Ind. 578; Eagan v. Downing, 55 Ind. 65 ; Bentley v. Dunkle, 57 Ind 374.
We must hold the original complaint insufficient.
This ruling does not affect the decision heretofore rendered, but will be considered a part of the original opinion.
The appellees have filed a petition for a rehearing; but as they make no point that was not fully considered in the original opinion, and ^as we are still satisfied with the views therein expressed, the petition is overruled.