Cox v. Cox
| Citation | 39 Kan. 121,17 P. 847 |
| Parties | MARTHA A. COX v. WILLIAM M. COX |
| Decision Date | 07 April 1888 |
| Court | Kansas Supreme Court |
Error from Kingman District Court.
Action to set aside a certain conveyance of land. Judgment for plaintiff, William M. Cox, at the June term, 1886. The defendant, Martha A. Cox, brings the case to this court. The facts are stated in the opinion.
Judgment affirmed.
Sankey & Campbell, for plaintiff in error.
Gillett & Whitelaw, for defendant in error.
OPINION
On April 30, 1886, William M. Cox instituted an action in the district court of Kingman county to set aside a conveyance of 160 acres of real estate, made October 6, 1885, by Elias L Kennedy to Martha A. Cox, and to subject the property to the payment and satisfaction of a judgment recovered by William M. Cox against Kennedy.
The petition charged that Kennedy and Martha A. Cox, brother and sister, intending to cheat and defraud William M. Cox, caused a conveyance of the property to be made, but that no consideration was paid to Kennedy for the land, and that the sale was a sham, and made for the sole purpose of placing the property beyond the reach of William M. Cox as a creditor of Kennedy; and that any payment of money or notes by Martha A. Cox to Kennedy was a pretense entered into for the purpose of enabling them to cover up the fraudulent purpose in the execution of the deed. It was further stated that Kennedy had no other property of any kind, and that the obligation upon the judgment could not be enforced against him except by a levy upon the land, and that Martha A. Cox accepted the deed well knowing this fact and with a view of defeating the plaintiff below in the enforcement and collection of his claim. The answer denied the allegations of the petition, and alleged that the purchase was made in good faith and for a valuable consideration; and there was the further allegation that Elias L. Kennedy was not indebted to William M. Cox in any sum. The court found that the conveyance was made for the purpose of hindering, delaying, and defrauding William M. Cox; that it was without consideration, and that Martha A. Cox was aware of the fraudulent purpose in the execution of the deed; and rendered a decree setting aside the conveyance and subjecting the property to the satisfaction of the judgment.
The only complaint here made is, that the evidence does not warrant & finding and decree of the court. After reading the testimony, we are unable to say that the result reached by the court is incorrect. The case turns largely on the credit to be given to the testimony of some of the witnesses and the inferences to be drawn from the conduct and appearance of the parties; and of these the trial court could best judge. The indebtedness from Kennedy to William M. Cox arose from the sale of improvements made upon a tract of Osage trust or diminished reserve land, and amounted to $ 800, for which Kennedy gave a note, which indebtedness was subsequently reduced to judgment. The existence of the debt was sufficiently established, and there is testimony to sustain the finding that the transfer of the land was made by Kennedy for the purpose of avoiding the payment of this debt and judgment. It is shown that he had no means in sight which could be subjected to the payment of the debt, except this land. He denied liability on the note, and threatened that if Cox did not compromise and accept a...
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