Brown v. Connell

• Citation: 85 Ky. 403
• Parties: Brown v. Connell.
• Decision Date: 22 March 1887
• Court: Court of Appeals of Kentucky

Page 403

85 Ky. 403

Brown v. Connell.

Court of Appeals of Kentucky.

March 22, 1887.

APPEAL FROM TRIMBLE CIRCUIT COURT.

MARC. MUNDY FOR APPELLANT.

SAME COUNSEL IN PETITION FOR REHEARING.

TROUT & PEAK AND JAMES S. MORRIS OF COUNSEL ON SAME SIDE.

CARROLL & BARBOUR FOR APPELLEE.

JUDGE BENNETT DELIVERED THE OPINION OF THE COURT.

On the thirtieth day of December, 1864, J. J. Connell, by deed duly acknowledged and recorded in the proper office, conveyed to his wife and children the tract of land in controversy. The appellee is one of said children. He was, at the time of the conveyance, about one year old.

On the first day of November, 1875, J. J. Connell, his wife, and all of his children, except the appellee, who was at the time an infant, conveyed to appellant said tract of land. The conveyance was by deed, duly acknowledged and recorded in the proper office. The consideration expressed in the deed was nine thousand forty-one dollars. The appellee, upon his arrival at lawful age, instituted suit against the appellant for the purpose of recovering one-fifth of said land, which he claimed by virtue of his father's conveyance. The appellant resisted the appellee's right to recover upon two grounds:

First. That the conveyance by appellee's father was made with the design of delaying, hindering and defrauding creditors and purchasers.

Second. That the conveyance was voluntary, without any valuable consideration therefor.

Section 1 of article 1, chapter 44, of the General Statutes, provides, in substance, that every gift or conveyance of any real estate made with the intent to delay, hinder or defraud creditors, purchasers or other persons, shall be void as against such creditors, purchasers and other persons.

The second section of the same article provides, in substance, that every gift or conveyance by a debtor of any of his estate, without a valuable consideration therefor, shall be void as to all of his then existing creditors, but shall not, on that account alone, be void as to creditors whose debts are thereafter created; nor as to purchasers with notice of the voluntary alienation.

Under the first section of the statute supra the rule is, that if the conveyance is actually fraudulent, the subsequent purchaser for value is not affected by either constructive or actual notice of the conveyance. Under the second section the rule is, that a voluntary conveyance is prima facie fraudulent as to a subsequent purchaser, and unless he has actual notice of the conveyance his title is perfect, and he is not affected by the fact that the voluntary conveyance is of record. Actual and not constructive notice must be brought home to him. (Jones' Adm'r v. Jenkins, &c., 83 Ky., 391.

But the protection afforded to purchasers for value by these sections of the statute is only for a limited period. By section 6 of article 4, chapter 71, it is provided, that "in actions for relief for fraud or mistake, the cause of action shall not be deemed to have accrued...