Achorn v. Parker

• Citation: 67 P.2d 561,145 Kan. 854
• Decision Date: 08 May 1937
• Docket Number: 33348.
• Parties: ACHORN v. PARKER et al.
• Court: Kansas Supreme Court

67 P.2d 561

145 Kan. 854

ACHORN v. PARKER et al.

No. 33348.

Supreme Court of Kansas

May 8, 1937

Syllabus by the Court.

Judgment creditor held not precluded from maintaining action in nature of creditors' bill to set aside deed executed by one of joint and several judgment debtors to his wife, on ground that such debtor had no property subject to execution to pay judgment and was insolvent by fact that execution had not been issued on judgment and returned unsatisfied, or by failure to show that other joint and several judgment debtor was unable to pay judgment.

Evidence held to justify judgment in favor of judgment creditor setting aside deed from debtor to wife as fraudulent on ground that there was no bona fide indebtedness from husband to wife constituting consideration for deed, and that deed was not executed to pay any such indebtedness, but was given to hinder, delay, and defraud creditors.

1. Achorn recovered a joint and several money judgment against Parker and Russell. Later he brought an action in the nature of a creditor's bill to set aside a deed executed by Parker to his wife on the ground it was given in fraud of creditors. At the trial the evidence clearly showed that Parker had no property subject to execution to pay the judgment and that he was insolvent when the deed was executed and since. Held (1) the fact an execution had not been issued on the judgment and returned unsatisfied was not a bar to the action, and (2) neither was the action barred by the lack of a showing that Russell was unable to pay the judgment.

2. In a creditor's suit to set aside a deed from a debtor to his wife on the ground it was given in fraud of creditors, the record is examined and it is held there was substantial competent evidence to sustain the findings of the trial court, (1) that there was no bona fide indebtedness from the husband to the wife, and (2) the deed was not executed to pay any such indebtedness, but was given to hinder, delay, and defraud creditors, particularly the plaintiff.

Appeal from District Court, Edwards County; Lorin T. Peters, Judge.

Action by G. G. Achorn against O. F. Parker and Flossie C. Parker. Judgment for plaintiff, and defendants appeal.

A. L Moffat, of Kinsley, for appellants.

Howard Rooney and Russell L. Hazzard, both of Dodge City, for appellee.

HARVEY Justice.

This was an action in the nature of a creditor's bill to set aside certain deeds from a husband to his wife alleged to have been executed in fraud of creditors, particularly the plaintiff. The trial court made findings of fact and rendered judgment for plaintiff. Defendants have appealed.

The court's findings may be summarized as follows: On September 28, 1933, in an action then pending in the federal court, sitting in Sedgwick county, in which C. C. Achorn was plaintiff and O. F. Parker and one J. L. Russell were defendants, plaintiff recovered a personal judgment "against the defendants and each of them for the sum of $3,500," with interest and costs. No part of this judgment has been paid, and there was no evidence that execution had been issued thereon, or that it had been filed for record in Edwards county. On November 28, 1933, O. F Parker and wife conveyed to their daughter their homestead in Ford county. On May 9, 1934, one W. F. Parker died intestate leaving surviving him his widow, Sarah Parker, his son, O. F Parker, and other heirs, and also leaving a substantial estate consisting of real and personal property. On May 12, 1934, O. F. Parker assigned to his wife his interest in the personal estate of his father, and also executed a deed to his wife for his undivided interest in his father's real property and recorded both instruments in the office of the register of deeds of Edwards county. On May 17, 1934, the heirs of W. F. Parker agreed upon a division of his estate by which O. F. Parker and his wife, Flossie C. Parker, acquired title to a certain 240 acres of land in Edwards county, other heirs getting other land or property of the estate. On the same day O. F. Parker and wife executed a mortgage for $6,000 on this 240 acres to Sarah Parker, who permitted O. F. Parker to use it as collateral security for his note of $10,000 given to a bank for a cattle loan on 374 head of cattle which he bought. On May 28, 1934, O. F. Parker opened an account in a bank at Fellsburg in the name of his wife and obtained a loan from the bank by signing a note "Flossie C. Parker, by O. F. Parker." On May 18, 1934, a petition for the appointment of an administrator of the estate of W. F. Parker was filed in probate court, and on June 4, 1934, O. F. Parker made a second assignment to his wife of his interest in the personal property of his father's estate and filed this assignment in the probate court. At the time he executed the above assignments and deed in favor of Flossie C. Parker, O. F. Parker was insolvent, and was still insolvent at the time of the trial. The assignments and deed were executed by O. F. Parker with the fraudulent intent to hinder and delay his creditors, and especially the plaintiff; and his wife, Flossie C. Parker, had notice and knowledge of this fraudulent intent at the time, but she did not participate in any of the fraudulent intentions on the part of O. F. Parker. Several years prior to these occurrences, Flossie C. Parker inherited from her parents between $6,000 and $8,000, the exact amount not being shown. This was deposited in the bank in her name. She and O. F. Parker checked upon the account and it was kept as a "common pocket-book." The exact amount O. F. Parker used of this fund the court was unable to determine from the evidence, except that it was a considerable portion of it. He intended to pay his wife the money which he used from her inheritance, but there was no agreement between them that he should do so. About 1932, he received a check from his father of $2,000, which he gave to his wife, but later checked that out and used it in planting wheat. No...