Hogg's Receiver v. Hogg

• Decision Date: 20 October 1936
• Citation: 97 S.W.2d 582,265 Ky. 656
• Parties: HOGG'S RECEIVER v. HOGG et al.
• Court: Kentucky Court of Appeals

97 S.W.2d 582

265 Ky. 656

HOGG'S RECEIVER v. HOGG et al.

Court of Appeals of Kentucky

October 20, 1936

Appeal from Circuit Court, Letcher County.

Action in equity by T. C. Adams, receiver for George Hogg, against Astor Hogg and others, wherein defendants filed a demurrer. From a judgment dismissing the action, plaintiff appeals.

Affirmed.

Hawk &amp Lewis, of Whitesburg, for appellant.

H. C Faulkner, of Hazard, and A. J. May, of Prestonsburg, for appellees.

CREAL Commissioner.

T. C Adams, receiver for George Hogg, instituted this action in equity against Mahala Hogg, wife of George Hogg, and Astor Hogg and other children of George Hogg, and certain of their vendees or assigns, alleging that in October, 1931, by order of the Letcher circuit court in an action styled Frazier Bros. v. George Hogg, he was appointed receiver of the estate of George Hogg and thereafter qualified as such; that after his qualification it was discovered that at a time when George Hogg was indebted to divers persons in sums aggregating approximately $30,000, and to whom he was still indebted, he had on April 19, 1927, given, and without valuable consideration conveyed, to his wife and respective children, named as defendants, various pieces of real estate described in the petition, and some of them in turn had conveyed or mortgaged property so conveyed to them to other parties defendant; that all of these conveyances were made with the full knowledge of these facts upon the part of all parties and with the fraudulent intent of hindering defrauding, and delaying his creditors.

He prayed that all such conveyances and mortgages be held fraudulent and void, and be set aside, and that the property described and conveyed by each of them be adjudged subject to all existing liabilities of George Hogg.

The defendants entered a general demurrer to the petition, and thereafter, and before further proceedings, some of the children in open court tendered deeds conveying back to George Hogg to be subjected to the demands of his creditors some of the various tracts or parcels of land set out and described in the petition.

The demurrer to the petition having been overruled, the wife and children of George Hogg filed answer denying the allegations of the petition and set up affirmative defenses which, for reasons presently appearing, it will be unnecessary to detail or consider.

After reply had been filed, defendants filed a motion to set aside orders filing former pleadings and to be allowed to withdraw same without prejudice to their right to file a special demurrer, which motion was sustained; thereupon, a special demurrer was filed.

Plaintiff thereupon filed an amended petition alleging that, when the matters referred to in the original petition were discovered and made known to the court, and upon motion of creditors of George Hogg, an order was entered appointing attorneys for the receiver to investigate the conveyances referred to in the petition, and if, upon investigation, the attorneys were of the opinion that they were made in fraud of creditors, appropriate action would be taken to have same canceled for the benefit of the creditors. A certified copy of the order was filed as an exhibit and made a part of the petition. The regular judge having declined to sit, a special judge assigned to hear the case sustained the special demurrer to the petition as amended on the ground that plaintiff did not have legal capacity to bring, prosecute, or maintain the action and adjudged that the petition be dismissed. Plaintiff is appealing.

It was indicated in the order sustaining the special demurrer that the general demurrer which had been overruled should have been sustained, but, since it had been overruled at a former term by another judge, that order would not be interfered with.

From the foregoing statement it will be seen that the only question presented for determination by this appeal is whether in the circumstances a receiver appointed by the court is vested by law with authority to maintain an action of this character, or whether such authority may be conferred by the court. The power to appoint the receiver was conferred by section 298 of the Civil Code of Practice, which, in so far as pertinent, reads: "On the motion of any party to an action who shows that he has, or probably has, a right to a lien upon, or an interest in, any property or fund, the right to...