Allen v. Russell

• Decision Date: 14 October 1879
• Citation: 78 Ky. 105
• Parties: Allen, & c., v. Russell, & c. Marchand, & c., v. Russell, & c.
• Court: Kentucky Court of Appeals

78 Ky. 105

Allen, & c., v. Russell, & c.

Marchand, & c., v. Russell, & c.

Court of Appeals of Kentucky.

October 14, 1879

1. The plaintiffs sued jointly, and they jointly excepted to the depositions of J. H. Allen and E. C. Sublett, who had given their depositions on behalf of their wives respectively. If this evidence was competent against any one of the plaintiffs, it was competent as to all of them.

2. The depositions were taken in 1874, and the General Statutes then in force govern the competency of the evidence.

3. Two of the plaintiffs were over twenty-one years of age; another was an infant, and the matters to which the witnesses testify occurred after the death of the decedent, J. F. Bridgewater.

4. Held, that the husbands of the female defendants were competent witnesses under section 24 and subsection 1 of section 25, General Statutes.

5. J H. Allen having used a note held by him, as guardian of Mrs Marchand, in part payment for property purchased by him, and exchanged for a house and lots in Lebanon, the title to which, at his instance, having been conveyed to his wife-- Held, that Mrs. M. has a lien upon the house and lot for the payment of the amount of the note.

6. So long as a trust fund can be distinctly traced, the chancellor will fasten upon it, and apply it to the purpose to which it should have been applied, unless the rights of innocent third parties have intervened.

7. Mrs Sublett, with her husband, cannot rely upon the statute of limitations, because of the infancy of a part of the plaintiffs. (Section 3, art. 4, chap. 63, Revised Statutes.)

8. But as the fraud is only constructive, Mrs. S. is entitled to her lien upon the property conveyed to her as security for the money invested by her in it, the balance of its proceeds to go to the creditors of her husband.

9. The compensation allowed to Russell & Averitt held to be reasonable.

10. The fund attached in the hands of Bowman, being compensation due to Allen from the Commonwealth for teaching a common school is not subject to attachment. The Commonwealth cannot permit the wages of teachers of common schools to be intercepted with the result of depriving the State of their services.

APPEAL FROM TAYLOR CIRCUIT COURT.

MESSRS. W. B. HARRISON, WINFREY & WINFREY FOR ALLEN AND WIFE.

1. The conveyance to Mrs. Allen is neither actually nor constructively fraudulent. She was entitled to nearly if not quite as much as paid for the house and lots in Lebanon from the estate of her father.

2. Although a note held by J. H. Allen. as guardian of Louella Bridgewater, may have been used by him in part payment for land which was exchanged for the house and lots in Lebanon, the paper is not found in this suit. She has no lien upon the lots for her demand.

3. The Revised Statutes, sections 2 and 3, chapter 40, have no application to this case, because Allen never owned the lots, nor has he attempted to make any conveyance thereof.

4. Allen had the right to decline to convert his wife's share in her father's estate to his own use. (Simms v. Spalding, 2 Duvall; 2 Bush, 535.)

RUSSELL & AVERITT FOR A. R. RUSSELL AND WIFE.

W. S. BRIDGEWATER FOR THEMSELVES AND LOUELLA MARCHAND AGAINST SUBLETT, & C.

1. J. H. Allen is not a competent witness. (Vol. 1, Acts of 1871-2, page 12.)

2. We insist that the Circuit Court properly subjected to sale the house and lots in Lebanon to pay the debt of $700 due to Louella Marchand, and then to satisfy the claims of J. F. Bridgewater's heirs against Allen as his administrator. The conveyance to Mrs. Allen was fraudulent. Bridgewater's estate to that extent is represented by the house and lots in controversy. (Rev. Stat., chap. 80, secs. 20, 21, and 22.)

ALEXANDER, BAKER & READ, AND DICKINSON FOR MARCHAND AND WIFE.

1. The conveyance to Mrs. Sublett of the tract of land in controversy is fraudulent as to Marchand and wife. Sublett was surety upon the bond of Bridgewater's administrators when he paid for the land and caused it to be conveyed to his wife. (3 J. J. Marshall, 290; Lyne v. Bank of Ky., 5 J. J. Marshall; 9 B. Mon., 514; 2 Bibb, 381; 4 Dana, 251; 1 Met., 350; 2 Met., 206; Revised Statutes, chap. 40, sec. 2; Gen. Stat., 44; 2 Bush, 75; 3 Bush, 215; 8 Bush, 533; Kerr on Frauds, 203; Story's Eq., vol. --, sec. 355; Ibid, vol. 2, chap. 32, sec. 1210.)

2. The allowance to Russell & Averitt is exorbitant.

3. The school fund attached in the hands of Bowman should be appropriated to appellant's debt.

WINFREY & WINFREY FOR SUBLETT AND WIFE.

1. The conveyance to Mrs Sublett is valid. When it was made there was no debt existing against her husband, but only a remote contingent liability.

2. The statute in regard to fraudulent conveyances does not apply to this case. (Doyle v. Sleeper, 1 Dana, 531; Crozier v. Young, 3 Mon., 157; Marshall v. Marshall, 2 Bush, 415.)

RUSSELL & AVERITT FOR RUSSELL, & C.

The allowance to Russell & Averitt was reasonable. The amount was agreed upon between them and the guardian of Mrs. Marchand.

OPINION

COFER JUDGE:

August 4, 1864, Jo. H. Allen and P. H. Bridgewater qualified as administrators of the estate of J. F. Bridgewater. The former is a son-in-law and the latter a son of the intestate.

At the August term, 1872, of the Adair Circuit Court, three of the distributees of the estate, viz: Laura Russell and her husband, and W. S. and Louella Bridgewater, by their curator, recovered judgments against the administrators and their sureties for balances of their distributive shares, and caused executions to issue thereon, which were returned " no property found." They then instituted this proceeding, by an amended petition filed without objection in the case in which the judgments were obtained, to enforce satisfaction of the judgments.

They sought, among other things, to subject a house and two lots, situated in the town of Lebanon, the title to which was in mrs. Allen, the wife of Jo. H. Allen, and daughter of the intestate, and a tract of land, situated in Adair county, the title to which was in Mrs. Sophia Sublett, wife of E. C. Sublett, one of the sureties on the administrators' bond and a defendant in the judgments.

In respect to the house and lots, the plaintiffs allege, in substance, that Jo. H. Allen purchased a tract of land in Adair county, and paid $700 of the purchase money in a note he held, payable to himself, as guardian of Louella Bridgewater, and that he paid the residue out of assets in his hands, as administrator of J. F. Bridgewater; that he afterward conveyed the land to Funk, in exchange for the house and lots, and that said " conveyance is voluntarily and fraudulent as to them," they being antecedent creditors.

These allegations, except that of fraud, are established by the evidence.

The allegations affecting Mrs. Sublett are, that subsequent to the execution of the administrators' bond by her husband, as a surety thereon he bought the land and paid for it, and, in fraud of the plaintiffs' rights, caused it to be conveyed to his wife; that " it was a voluntary conveyance, made after the execution of the administrators' bond."

These allegations were denied by Sublett and wife, but with this explanatory statement:

That Mrs. Sublett was, in her own right, the owner of $730 in gold, and had the exclusive possession of it, and it was not subject to her husband's debts, and was not in his possession or under his control; that at her request it was sold for $1,538 in " greenbacks; " that she also owned $300 in paper money, which was her share of her father's estate, and that, at her request, it was invested in the land; that her husband agreed that if she would so invest her money, he would pay the balance, between eleven and twelve hundred dollars, and have the land conveyed to her. She also pleaded and relied upon the statute of limitations of five years.

The chancellor adjudged the house and lots in Lebanon to be sold to pay to Louella the sum of $700, the amount of the note payable to Allen as her guardian, which he used to pay a part of the purchase money for the land swapped to Funk for the house and lots, and that the residue of the price for which it should sell should be applied, pro rata, in payment of the judgments.

The petition was dismissed as to Mrs. Sublett.

From so much of the judgment as subjected the house and lots to sale, Allen and wife appeal, and from so much as dismissed the petition as to Sublett and wife, Louella, now Mrs. Marchand, and her husband have appealed.

The depositions of Jo. H. Allen and E. C. Sublett were taken on behalf of their respective wives, and exceptions to them having been overruled, the first question for decision is, whether they were competent witnesses.

The plaintiffs sued jointly, and filed joint exceptions to the depositions; and if the witnesses were competent as to any one of the plaintiffs, they were competent as to all. (Worthley v. Hammond, 13 Bush, 452.)

The depositions were taken in 1874. The General Statutes were then in force, and the competency of witnesses was regulated by sections 22 to 28, inclusive, of chapter 37. W. S. Bridgewater and Mrs. Russell, two of the plaintiffs, were over the age of twenty-one years. Louella, now Mrs. Marchand, was an infant. The facts testified to occurred after the death of J. F. Bridgewater, and the husbands of the female defendants were competent witnesses under section 24 and subsection 1 of section 25.

We are therefore of the opinion that the court did not err in overruling the exceptions to the depositions. In regard to the conveyance from Funk to Mrs. Allen, it is to be remarked that it is not attacked for actual fraud, but as voluntary and, therefore, fraudulent under the statute against fraudulent conveyances, and...