Day v. Rose

• Decision Date: 20 September 1918
• Citation: 205 S.W. 325,181 Ky. 361
• Parties: DAY v. ROSE ET AL.
• Court: Kentucky Court of Appeals

205 S.W. 325

181 Ky. 361

DAY v. ROSE ET AL.

Court of Appeals of Kentucky.

September 20, 1918

Appeal from Circuit Court, Wolfe County.

Suit by J. T. Day against Paris Rose and others. Judgment for plaintiff, granting part of the relief asked, and he appeals. Affirmed.

S. M Nickell, of Hazard, for appellant.

G. W Fleenor, of Jackson, for appellees.

CLAY C.

Plaintiff J. T. Day, brought this suit against Paris Rose and Mary A Rose his wife, Samuel Rose, Alison Rose, and the Hazel Green Bank, to recover of Paris Rose the balance due on a note executed by him, to set aside certain conveyances on the ground of fraud, to have certain alleged payments made by Paris Rose to Samuel Rose and Alison Rose declared fraudulent, and to have a mortgage executed by Paris Rose and wife to the Hazel Green Bank declared a fraudulent preference to the extent of $300. Plaintiff recovered a personal judgment against Paris Rose, but was denied the other relief prayed for. He appeals.

During the pendency of this appeal, the action was dismissed as to Mary A. Rose, Alison Rose, and Samuel Rose, thus leaving Paris Rose and the Hazel Green Bank the only appellees. The suit against the Hazel Green Bank is based on the following facts: On November 2, 1911, Elizabeth Lacy and husband conveyed to Mary A. Rose a certain tract of land located in Wolfe county. On February 11, 1915, Mary A. Rose and Paris Rose, her husband, mortgaged the land purchased from Mrs. Lacy to the Hazel Green Bank to secure an indebtedness of $820. It is the contention of plaintiff that Paris Rose furnished the money to pay for the Lacy land and was the real owner thereof, and that the conveyance was made to Mary A. Rose for the purpose of defrauding his creditors. It is also claimed that $300 of the indebtedness secured by the mortgage represented an old debt due from Paris Rose to the bank, and that, as Paris Rose was insolvent when the mortgage was executed, the mortgage to the extent of $300 constituted a fraudulent preference.

It is unnecessary to determine whether this contention would have been upheld, had the appeal not been dismissed as to Mary A Rose. Of course, if the mortgaged land belonged to Mary A. Rose, she had the right to execute the mortgage for the purpose of securing her husband's debt, and no part of the mortgage debt could be regarded as a fraudulent preference, because the land was not subject to her husband's debts,...