Creel v. Cloyd

• Decision Date: 21 January 1913
• Citation: 152 S.W. 776,151 Ky. 627
• Parties: CREEL et al. v. CLOYD. SAME v. SMITH & FLORA.
• Court: Kentucky Court of Appeals

152 S.W. 776

151 Ky. 627

CREEL et al. v. CLOYD.

SAME v. SMITH & FLORA.

Court of Appeals of Kentucky.

January 21, 1913

Appeal from Circuit Court, Taylor County.

Suits by J. W. Cloyd and by Smith & Flora against James E. Creel and others. From a judgment for plaintiff in each case defendants appeal. Affirmed.

C. W Wright, of Campbellsville, and Polsgrove & Gaines, of Frankfort, for appellants.

H. S Robinson, B. A. Rice, H. N. Beauchamp, and B. T. Hardin, all of Campbellsville, for appellees.

LASSING J.

Suits were instituted in the Taylor circuit court against James E Creel and his two sons, by John W. Cloyd and Smith & Flora, creditors of James E. Creel, in which they sought to have a conveyance, by said Creel to his two sons, set aside, on the ground that it was without consideration and for the fraudulent purpose of defeating them in the collection of their debts. The defendant James E. Creel admitted the indebtedness, but denied that the conveyance was made for a fraudulent purpose, and pleaded affirmatively that it was for a valuable cash consideration. His two sons likewise denied the allegation of fraud as to them, and pleaded that the conveyance was for a valuable consideration. Proof was taken, and, upon consideration, the chancellor adjudged the conveyance fraudulent and directed the deed canceled and the land subjected to the payment of plaintiff's debts. The defendants appeal.

The evidence shows that, for some years before the date of the conveyance, James E. Creel had, in connection with Cloyd and another person, been engaged as partners in the live stock business in Taylor county. They had bought and sold much live stock; the transactions being conducted through a bank at Campbellsville. The business had not proven profitable, and they had lost considerable money. In the settlement and adjustment of their business with the bank, Cloyd had to pay several hundred dollars for his associates in business; and it was Creel's part of this partnership indebtedness, which he had to pay to the bank for him that he was seeking to recover in this suit. Creel was likewise indebted to Smith & Flora, and they had instituted suit against him, in which they sought to recover judgment for the amount due them. Summons was served on James E. Creel, in the suit of Smith & Flora against him, on August 20, 1907. The deed to his two sons, which is attacked as fraudulent, was made on August 24, 1907, or four days after the service of summons upon him in the suit of Smith & Flora. Cloyd had not at that time sued him, but his suit followed shortly after the execution of this deed.

While the deed recites that it was for a cash consideration, the evidence discloses that nothing was paid for the land at that time. Appellant James E. Creel testifies that he was indebted to his sons in the sum of $1,000, and that the deed was made for the purpose of satisfying this indebtedness. The explanation offered by appellants of the way and manner in which this indebtedness, on the part of the father to his sons, arose, is: James E. Creel received as much as $1,000 for his boys from their grandfather, or his estate; that the money was paid over to him by John L. Collins for them; and that he agreed to account to them for it. This money, he says, was paid to him many years ago, he thinks in 1887. His brother-in-law John L. Collins, acting for his father-in-law, his children's grandfather, paid him the money. His wife died in 1887, some six or eight months after her father died; that this money, which he received, was his wife's part of her father's estate; that John L. Collins was his father's administrator; and that the money that his wife received from her father was the money that paid for the land. He makes certain other statements, which are not altogether clear; but from the foregoing it is apparent: First, that he never received any money whatever from his father-in-law for his children, but that any money that came to him from either his father-in-law or the estate of his father-in-law was received by him in the lifetime of his wife; and, if it was not by him, at that time, reduced to possession upon the death of his wife, in September following, he was entitled to all of it, for chapter 31, § 11, subsec. 3, of the General Statutes, then in force, gave to the husband the entire personal estate of his wife. If he received any money for his children from their grandfather,...