Cogwell's Heirs v. Lyon
| Decision Date | 19 December 1829 |
| Citation | 26 Ky. 38 |
| Parties | Cogwell's Heirs v. Lyon, & c. |
| Court | Kentucky Court of Appeals |
Heir. Advancements. Covenant. Eviction. Damages. Consideration. Interest. Mesne Profits. Possession.
ERROR TO THE BOURBON CIRCUIT; GEORGE SHANNON, JUDGE.
Mills for plaintiff.
Talbot and Crittenden, for defendants.
In 1791, John Lyon sold to Joseph Cogwell, 80 acres of land, and gave his bond for the conveyance of the legal title to him on the payment of the whole of the consideration.
Cogwell settled on the land, paid the whole price and died, leaving his heirs in possession.
Hanway and others, claiming adversely to Lyon's claim, recovered a part of the 80 acres, by a decree in a suit in chancery brought against Lyon and Cogwell's heirs.
Afterwards in 1812, Cogwell's heirs instituted their suit in chancery against the heirs of Lyon (he having, in the mean time, died), for a specific execution of the contract of sale by Lyon to Cogwell, for so much of the 80 acres as had not been recovered by Hanway, et. al., and for damages equivalent to so much as had been lost. They allege the payment of the entire consideration; that no title had ever been made to their ancestor or to themselves, for any part of the land; that there were no assets in the hands of the personal representatives of Lyon, and that he had, in his lifetime, fraudulently conveyed his real estate to his son John L. Lyon, who, together with the other heirs, and the personal representative of John Lyon, deceased, were made defendants.
The personal representatives admit, in their answer, that they have no assets. Two of the heirs admit they had received some very trifling presents from their father, and John L. Lyon insists that the conveyance to him of the real estate, was bona fide, and valid against creditors.
The circuit court decreed a conveyance by Lyon's heirs to Cogwell's, of the land which had not been recovered by Hanway, & c., and having declared the deed to J. L. Lyon fraudulent, and directed an inquiry to ascertain the damages for the lost land, decreed $295.84 in favor, of the heirs of Cogwell, (that being the amount of the consideration, without interest, for the quantity lost), to be paid by the heirs individually, in the following proportions, to-wit: $30 by one, $60 by another, and the remainder by J. L. Lyon.
To reverse this decree, Cogwell's heirs prosecute this writ of error.
As between the heirs of Lyon, the decree is anomalous and strikingly unjust, those to whom the small advancements were made, supposed to be worth $30 and $60, should not have been directed to pay the total values of their advancement, whilst J. L. Lyon, who received the whole real estate, was directed by the decree, to pay only a small part of its value.
Decree, against some of the heirs, " that they pay whole of their advancements, in discharge of debt of decedent, and that others pay only part of their advancements, is erroneous.
But the heirs have not complained, and therefore, this error in the decree cannot be noticed otherwise than as it may affect the plaintiffs in error. So far as the plaintiffs are affected, there is error in the decree.
The decree should have been joint for the whole amount; otherwise, if any one of the heirs be insolvent, the plaintiffs will lose the amount decreed against him, and it ought to have subjected the land conveyed to J. L. Lyon. After decreeing that the conveyance to him was void, as to the creditors of his father, it was not proper to leave the land in this condition, and render a decree against J. L. Lyon personally. The appropriate decree would have been the subjection of the land, to the payment of the damages. Yoder v. Standiford, VII. Monroe, 478.
Decree, against heirs, should be joint, for whole amount of debt, and not that each heir pay a specific portion of it?? for thereby, creditor might lose by insolvency of some of them.
It is satisfactorily shown that the whole consideration had been paid, and that the conveyance to J. L. Lyon was colorable, and voidable by the creditors of his father. But after decreeing, as the court rightfully did, that the conveyance was invalid, it ought to have subjected the land to the payment of the damages, in a joint decree against all the heirs.
Decree against heir, that conveyance to him, by decedent, is fraudulent against creditors, should,...
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Hawkins v. Stoffers
...v. Lyons, 69 N.Y.S. 378; Bank v. Co., (Mont.) 197 P. 994; Welch v. Co., (Wash.) 134 P. 526; 39 Cyc. 2009; 7 R. C. L. 1148-51; Cogwell's Heirs v. Lyon, 26 Ky. 38; Hurst v. Means, 34 Tenn. 546. Plaintiff was compelled to yield to a paramount title. Hawkins v. Merritt, (Ala.) 19 So. 589; Kicks......
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Finucane v. Prichard
...supra, and Haas, supra, can be traced to such cases as Cox's Heirs v. Strode, 2 Bibb 273, 5 Ky. 273 (1811), and Cogwell's Heirs v. Lyons, 3 J.J. Marshall 38, 26 Ky. 38 (1929). They argue that the cases involve evictions by a true owner, which are distinguishable from this case. They also qu......