Cavanaugh v. Britt

• Decision Date: 17 June 1890
• Parties: CAVANAUGH v. BRITT.
• Court: Kentucky Court of Appeals

13 S.W. 922

90 Ky. 273

CAVANAUGH v. BRITT.

Court of Appeals of Kentucky.

June 17, 1890

Appeal from the Louisville law and equity court.

"To be officially reported."

H. M Lane, for appellant.

Andrew A. Haggin and John R. Doughan, for appellee.

HOLT J.

The appellee, Joseph Britt, obtained a judgment in the Jefferson court of common pleas on May 1, 1872, against John Cavanaugh the husband of the appellee, Catharine Cavanaugh. An appeal was taken to this court, and the judgment superseded. The appeal was dismissed in 1878. The mandate of this court was filed in the lower court on April 6, 1878; an execution sued out upon the judgment, and returned, "No property," on May 2, 1878. November 5, 1873, the husband made a conveyance of all his property to the appellant. It was a sweeping transfer. No property was described. It conveyed, or at least attempted to convey, to her, all the property of her husband, of every description. The recited consideration is love and affection. This action was brought by the appellee on December 7, 1887, to set aside the deed as not only voluntary, but actually fraudulent, and to subject to the payment of the judgment four lots of land which the debtor owned at the time of its rendition, and which are now claimed by the appellant under the deed from her husband.

Several defenses are pleaded. Among them is payment. There is no evidence however, to support this plea. Also, that there was not only a good, but a valuable, consideration for the deed. It is evident, however, that, if not actually fraudulent, it was constructively so, as to the existing creditors of the grantor, and at best but a voluntary conveyance.

The grantee also relies upon not only the five, but the ten years statute of limitation as to actions seeking relief for fraud; and whether the conveyance to her is protected by the lapse of time is the only real question in the case. Under our statute, an action for relief upon the ground of fraud or mistake must be commenced within five years after the cause of action accrues; and section 6, art. 3, c. 71, Gen. St says: "In actions for relief for fraud or mistake, or damages for either, the cause of action shall not be deemed to have accrued until the discovery of the fraud or mistake; but no such action shall be brought ten years after the time of making the contract, or the perpetration of the fraud." The five-years provision of the statute merely perfects the first clause of this section, and fixes the limitation as five years from the discovery of the fraud; or, as construed by this court, as five years from the time when the creditor, in the exercise of ordinary diligence, should have discovered it. Dye v. Holland, 4 Bush, 635. The legislature has seen fit-- and wisely, no doubt --to also provide that an action to annul a conveyance as fraudulent as to antecedent creditors is barred in ten years after its execution, regardless of the time when the creditor may discover the fraud. This applies to constructive, as well as actual, frauds. It was intended to quiet old transactions, and to fix a time beyond which the parties should not contend as to when the fraud was discovered. It would be unreasonable to suppose, however, that it intended, when it so limited the time, that the creditor should be barred of his action at the end of it, if, during that period, some other provision of law had prevented him from bringing it. In the case now before us the debtor superseded the judgment. It remained so until April, 1878. This deprived the appellee of the right to bring any action looking to the collection, or even the protection, of his judgment. The superseding of it prevented any step in that direction. This condition resulted from the act of the debtor, who was a necessary party to any suit to annul his conveyance. The law gave him the right to thus stop his creditor from proceeding to collect his demand; and it would be unreasonable to permit him to exercise this right, and then allow one holding...