Brown v. Foree, &C.

• Citation: 46 Ky. 357
• Court: Court of Appeals of Kentucky
• Decision Date: 01 January 1847
• Parties: Brown <I>vs</I> Foree, &c.

46 Ky. 357

Brown vs Foree, &c.

Court of Appeals of Kentucky.

Spring Term, 1847.

APPEAL FROM THE SHELBY CIRCUIT.

The present Chief Justice delivered this opinion on the 31st October, 1846, a few days before the end of the term, it was suspended until the — July, 1847, when the suspension was removed.

THIS action of trespass was brought by Brown to recover damages, for taking under several attachments against D. R. Johnston, divers articles of personal property which Johnston had sold and conveyed to him together with his farm, crop, stock, &c. &c.

The first and third instructions assert, in effect, that if a purchaser of property from an indebted vendor, knows at the time of his purchase, that the vendor makes the sale with the intent of thereby hindering or delaying any of his creditors from making their debts by execution, or of delaying them in the regular course of collecting their debts by law, such knowledge furnishes conclusive evidence of fraud in the vendee, and makes his purchase void, although he may actually pay a full consideration for the property. But the debtor himself, though he resorts to a sale for the purpose of hindering and delaying some of his creditors, may intend it as a means of paying others; and if this be so, or if the vendee has reasonable grounds for supposing it to be so, the mere knowledge that the vendor intends to hinder and delay some of his creditors, cannot establish, or at least cannot conclusively prove as against him any fraudulent intent. If a sale is made with the fraudulent intent on the part of the debtor of thereby placing both his property and its price out of the reach of his creditors, and of thus defeating them in the collection of their debts, it would be difficult to avoid the conclusion, that if the purchaser, being under no necessity to purchase, knew of this fraudulent intent, and made the purchase without taking any means to prevent its effectuation, he must be regarded as having participated in it.

But on the other hand, the fact, if absolutely certain, that the purchaser actually pays out of his own means, and irrevocably, a full consideration for the property, and especially when he secures a considerable portion of it to the payment of the vendor's debts, in some of which he is himself bound as surety, furnishes also a strong ground for viewing in a favorable light his participation in the transaction; and although it may not of itself absolutely repel the inference of fraud, arising from his knowledge of the vendor's intent, it has a tendency to repel it, and should, with other circumstances, be left to the jury which is to determine the question of fraud. At any rate, the certainty of a fact which so strongly indicates good faith on the part of the purchaser, should require satisfactory proof of the opposing fact of knowledge of the fraud, before this last fact should be taken to establish his concurrence in the fraudulent intent. And if it can be fairly assumed, upon all the...