Downing v. Carr's Adm'r

• Decision Date: 03 February 1897
• Parties: DOWNING v. CARR'S ADM'R. [1]
• Court: Kentucky Court of Appeals

38 S.W. 1044

DOWNING v. CARR'S ADM'R. ^[1]

Court of Appeals of Kentucky.

February 3, 1897

Appeal from circuit court, Fayette county.

"Not to be officially reported."

Action by Sallie Carr's administrator against W. G. Downing to recover on a note. Judgment for plaintiff, and defendant appeals. Affirmed.

L. J. Moore, for appellant.

Geo. C. Webb, for appellee.

LEWIS, C.J.

An administrator may, in course of settlement and distribution of the estate of decedent, acquire by transfer and assignment a promissory note, and, of course, as such, maintain an action thereon, without specifically alleging the obvious fact that such note is an asset of the estate. In the answer was a statement that execution of the note was obtained by fraud, misrepresentation, and covin; and it is argued the reply was defective because it contained simply a denial that said note was obtained by fraud, misrepresentation, and covin. Fraud means and comprehends deceit in all the modes in which it may be practiced, and therefore it is inaccurate to say a party was, in a particular transaction, guilty of fraud or misrepresentation, or fraud or covin, because, if guilty of either the two last, he was necessarily guilty of the former. So, according to a fair interpretation of the language used in the reply, it may and should be held and considered as equivalent to a denial that execution of the note was procured by fraud committed by misrepresentation or covin, the two last being nearly, if not quite, synonymous terms. The evidence on trial of the case was sufficient to authorize the jury, under proper instructions given, to find that the note was based upon a valuable consideration, and executed by appellant voluntarily, and without fraud of any kind being practiced upon him. Judgment affirmed.

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Notes:

^[1] Rehearing denied.

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