Childers v. Bales

• Decision Date: 12 January 1910
• Parties: CHILDERS et al. v. BALES.
• Court: Kentucky Court of Appeals

124 S.W. 295

CHILDERS et al. v. BALES.

Court of Appeals of Kentucky.

January 12, 1910

Appeal from Circuit Court, Pike County.

"Not to be officially reported."

Action by T. S. Bales against Alvin Childers and others. From a judgment for plaintiff, defendants appeal. Affirmed.

J. E Childers, for appellants.

Robert L. Miller, for appellee.

CLAY C.

Appellee T. S. Bales, as successor of the firm of Pinson, Bales &amp Smith, instituted this action against appellant Wm. Childers upon a judgment for $126.40, upon which an execution was issued and returned, "No property found." By amended petition appellee attacked a conveyance made to Alvin Childers of a small tract of land by J. S. Ratliff and wife on March 27, 1903. The consideration for this conveyance was $100, which was paid by appellant William Childers. The amended petition charged that this conveyance was made with the fraudulent intent to cheat, hinder, and delay the creditors of said William Childers. Various attachments were issued and sustained. The trial court entered judgment directing that the conveyance to Alvin Childers be set aside. The validity of the latter portion of the judgment is attacked on this appeal.

Section 1907, Ky. St. (Russell's St. § 2100), is as follows "Every gift, conveyance, assignment, transfer or charge made by a debtor, of or upon any of his estate, without valuable consideration therefor, shall be void as to all of his then existing liabilities, but shall not, on that account alone, be void as to creditors whose debts or demands are thereafter contracted, nor as to purchasers with notice of the voluntary alienation or charge; and though it be adjudged to be void as to a prior creditor, it shall not therefore be deemed to be void as to such subsequent creditors or purchasers." In interpreting this statute this court has held that a conveyance by a debtor without valid consideration is void as to all his then existing liabilities, and passes no title whatever to the grantee. Yankey v. Sweeney, 85 Ky. 55, 2 S.W. 559. The rule is the same where the conveyance is to one person and the consideration is paid to another. Allen v. Russell, 78 Ky. 105; Adams v. O'Rear, 80 Ky. 129; Bank v. Rose, 113 Ky. 946, 69 S.W. 967, 24 Ky. Law Rep. 732.

Applying the rule laid down in the above cases, the record shows that the judgment sued upon was obtained in the year 1894, and was unpaid. Therefore the debt in favor of appellee existed at the time of the conveyance to Alvin Childers. As the money was paid by William Childers and there was no consideration for the conveyance, the conveyance was void as to William Childers' liabilities existing at the time of the conveyance. All that was necessary to be shown was that the debt existed and that the conveyance was voluntary. It was not incumbent upon the creditor to show that the money paid for the land was not exempt. This was a matter of defense. There was testimony to the effect that William Childers at the time that he testified had no property over and above his exemptions. He testified, however, about five years after the conveyance in question. The testimony so given was doubtless true, but it did not show that the money paid for the property in question was exempt at the time the conveyance was...