On Petition for a Rehearing-.
Franklin, C.— Counsel for appellee earnestly insist that this court erred in holding that the court below erred in overruling the demurrer to the second paragraph of the complaint, for two reasons: First. That, while it was not good to set aside a fraudulent transfer of property, it was sufficient to obtain judgment on the notes and a foreclosure of the mortgage by the administrator as the representative of the deceased. Second. That this cause has heretofore been passed upon by this court, and that no question which existed prior to said decision can now be raised in this court.
The cause of action was dismissed as to the first paragraph of the complaint, and the trial was had alone upon the second paragraph.
While the first paragraph contained an allegation, that, at the time of the cancellation and surrender of the notes by deceased to appellant, deceased was of unsound mind, there was no such allegation in the second paragraph. The averments in this are, that he was weak and feeble in mind and body, and that he conspired with the defendant to defraud, cheat, hinder and delay his creditors. There is no charge in this paragraph that the defendant had practiced a fraud upon the deceased. Under the allegations of this paragraph, had the deceased been living, he could not have maintained an action on the notes and for a foreclosure; neither can the plaintiff as his representative.
•The only cause of action set out in this paragraph is in favor of appellee as the representative of deceased’s creditors. And appellee’s counsel admit that' it was insufficient for that purpose, for the reason that it did not aver the insolvency of *150the deceased, and that he did not reserve property enough to pay all his debts at the time of the alleged fraudulent transfer, and had not so much property at the time of his death. We think there was no error in holding that the court below erred in overruling the demurrer to this paragraph.
As to the second reason, that question was not noticed by the counsel for appellee in their original brief. And it is a rule of this court that new questions in a petition for a rehearing will not be considered when they are such as might have been presented on the original hearing. Liberty Tp., etc., Association v. Watkins, 72 Ind. 459; Board, etc., v. Hall, 70 Ind. 469; Danenhoffer v. The State, ante, p. 75.
We think the original decision ought to be adhered to.
Per Curiam. — The petition for a rehearing is overruled, at appellee’s costs.