German Ins. Bank v. Nunes
| Decision Date | 20 June 1882 |
| Citation | 4 Ky.L.Rptr. 16,80 Ky. 334 |
| Parties | German Insurance Bank v. Nunes, & c. |
| Court | Kentucky Court of Appeals |
1. In all cases where conveyances are made ostensibly to secure an equal distribution of assets among creditors, their validity depends upon the intention of the debtor.
2. A debtor conveys his property, stating upon the face of the deed that he has more property than will pay his debts declares his object to be to prevent a sacrifice of his property, and to save a residue for himself. The deed is fraudulent as to creditors upon its face.
APPEAL FROM LOUISVILLE CHANCERY COURT.
ALEX. P. HUMPHREY FOR APPELLANT.
1. It is clear that appellee Nunes considered his property more valuable than the amount of his debts, and he intended to prevent his creditors from enforcing payment by ordinary process.
2. He had a double design: to pay his creditors and leave a surplus for himself. The deed is, upon its face, fraudulent as to creditors.
WHARTON & RAY AND W. O. & J. L. DODD FOR APPELLEES.
1. The recital in the deed is immaterial. If there is a recital, and the operative part of the deed is not ambiguous, the recital has no effect, whether it agrees or is in conflict therewith. The intent of the parties is evident, and no fraud can be derived from it. (Burrill on Assignments, 83, 454, 455, 466 336, 474, 475; Herman on Estoppel, sec. 254; 18 Barb., 612; Bank U. S. v. Hake, 4 Mon., 429; 16 B. Mon., 238; 15 Barb., 619; 32 N.Y. 212; 22 Ala. 243; Ward v. Trotter, 3 Mon., 3; 15 Mo. 381; 5 John. Ch., 27; 21 N.Y. 23.)
2. If there is any doubt as to the meaning of the terms used, and the assignor is entitled to make proof of their meaning there can be no estoppel. (Banks v. Coyle, 2 Mar., 566; Mershon v. Mershon, 9 Bush, 638; 5 Mon., 60; 7 J. J. Mar., 81.)
The only question to be considered is, whether the following deed of trust is fraudulent and void because made to hinder and delay creditors. The material part of the deed reads: " That whereas, the said first party is indebted to sundry persons in various sums, amounting in the aggregate to about thirty-eight thousand dollars, and is the owner of a large amount of assets, estimated to be worth more than fifty thousand dollars; and whereas, the said first party is unable to convert his said assets into money fast enough to discharge his said indebtedness as it matured, and is desirous that the same shall not be sacrificed, but so managed and disposed of that they will realize their fair value at as little cost as possible, and satisfy his creditors in full, and leave a residue for him."
In all cases where conveyances are made for the ostensible purpose of securing an equal distribution among creditors of the property of the debtor, the validity of the conveyance depends upon the...
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