Carter v. Braswell

• Decision Date: 03 February 1920
• Citation: 186 Ky. 760,217 S.W. 1019
• Parties: CARTER ET AL. v. BRASWELL.
• Court: Kentucky Court of Appeals

217 S.W. 1019

186 Ky. 760

CARTER ET AL. v. BRASWELL.

Court of Appeals of Kentucky.

February 3, 1920

Appeal from Circuit Court, Allen County.

Action by A. G. Braswell against T. Y. Carter and others. From judgment for plaintiff, defendants appeal. Reversed, and cause remanded, with directions to enter judgment in conformity with opinion.

Bradburn & Basham, of Bowling Green, and Frank Goad, of Scottsville for appellants.

Noel F Harper and Gilliam & Gilliam, all of Scottsville, for appellee.

CLAY C.

G. W Follis and L. M. Follis purchased A. G. Braswell's interest in their mercantile establishment and executed to Braswell their promissory note for $1,350, with W. B. Foster as surety. Braswell sold and indorsed the note to the National Bank of Scottsville. The bank brought suit on the note in the Allen circuit court and recovered a judgment against the makers and Braswell as indorser. Thereafter the bank caused an execution to issue on the judgment, which was returned, "No property found," on August 30, 1917. A similar execution was issued at the direction of Braswell and this execution was also returned, "No property found." In the month of January, 1916, W. B. Foster conveyed by separate deeds, to his son-in-law, T. Y. Carter, two tracts of land located in Allen county, one of which contained about 200 acres, and the other about 87 acres. Charging that these conveyances were made by Foster with a fraudulent intent to cheat, hinder, and delay his creditors, including the plaintiff, A. G. Braswell brought this action to set aside the conveyances in order that the land might be subjected to the payment of the judgment in favor of the bank. After interposing a special demurrer challenging the right of plaintiff to bring the action to obtain the relief prayed for, defendants denied the allegations of fraud. Carter also pleaded facts showing that he was purchaser for value, without notice of Foster's indebtedness to plaintiff or of any fraudulent intent on the part of Foster. The special demurrer was overruled, and on final hearing judgment was rendered setting the conveyances aside. Defendants appeal.

The facts developed by plaintiff's evidence, and upon which he relies to set aside the conveyances, are as follows: After signing the note, Foster learned that the Messrs. Follis, for whom he was surety, were heavily involved, and admitted that he did not intend to pay the note as it was not his debt. He owned, not only the land involved in this action, but another tract in Tennessee, where his son-in-law lived. In making conveyances to his son-in-law, he reserved the house and two or three acres of ground worth about $1,000, and conveyed to his son-in-law only the remainder of the Kentucky land, thus placing the Kentucky land beyond the reach of his creditors. Dr. Carter had advanced Foster large sums of money, covering a period of years prior to the transaction in question, and did not make the trade by which the land was conveyed to him...