Hatcher-Powers Shoe Co. v. Sparks

• Decision Date: 12 December 1930
• Citation: 237 Ky. 321,35 S.W.2d 564
• Parties: HATCHER-POWERS SHOE CO. v. SPARKS et al.
• Court: Kentucky Court of Appeals

35 S.W.2d 564

237 Ky. 321

HATCHER-POWERS SHOE CO. v. SPARKS et al.

Court of Appeals of Kentucky

December 12, 1930

As Modified on Denial of Rehearing March 13, 1931.

Appeal from Circuit Court, Boyd County.

Suit by Hatcher-Powers Shoe Company against, W. F. Sparks and others. Judgment for defendants, and plaintiff appeals.

Reversed with directions.

Woods Stewart, Nickell & Smoot, of Ashland, for appellant.

John S Fullerton, of Ashland, for appellees.

DRURY C.

This is an action under section 439 of the Civil Code of Practice. The shoe company, in its petition, described with particularity lot No. 19 on Prospect avenue, Ashland, Ky. which W. F. Sparks had, so it alleged, fraudulently conveyed to Goldie Sparks, and which the shoe company sought to subject to the payment of a judgment against W. F. Sparks. It was denied the relief it, sought, and the shoe company has appealed.

We shall give here the dates of the happening of certain events of importance in the determination of this controversy: July 5, 1918, this property was conveyed to W. F. Sparks. August 7, 1918, W. F. Sparks married Goldie Sparks. March, 1920, W. F. Sparks subscribed for nine shares of $100 each of the capital stock of the shoe company. July 6, 1922, an attorney for the shoe company notified W. F. Sparks that, if he did not pay the balance ($660) of his subscription for this capital stock, he would be sued thereon. November 25, 1922, W. F. Sparks conveyed the property described to Goldie Sparks, the consideration therefor being thus expressed in the deed: "In consideration of $1.00 cash in hand paid the receipt whereof is hereby acknowledged and love and affection which the party of the first part has for his wife, the party of the second part." January 18, 1923, W. F. Sparks was sued in the Boyd circuit court by the shoe company, and it recovered a judgment against him for $660, with interest from September 1, 1920. This was similar to suits set out in 212 Ky. 163, 278 S.W. 615. May 5, 1926, execution, issued on that judgment, was placed in the hands of the sheriff of Boyd county, and that officer on June 2, 1926, returned it, "No property found." September 23, 1926, the shoe company filed this suit in equity reciting the foregoing, describing particularly this lot 19, and making Sparks and his wife, the Home & Savings Building Association, and V. V. Adkins defendants, the last two being alleged to have liens on the property. The shoe company, on September 25, 1926, filed in the Boyd county court clerk's office a lis pendens notice, as required by section 2358a--1 Ky. Stats. The alleged lienholders have never answered.

Mr. and Mrs. Sparks answered, traversed the petition, denied the conveyance, to her, was fraudulent, denied that Adkins had a lien on the property, pleaded W. F. Sparks, at the time of the transfer to Goldie Sparks, was solvent, was worth ten or twelve thousand dollars and had ample property subject to execution to pay all his debts, that this property had been conveyed to Goldie Sparks in good faith to carry out an antenuptial agreement made with her by W. F. Sparks, that she did not then know the financial condition of W. F. Sparks, and that she did not then know of the claim of the shoe company.

This promise was oral, and subsection 5 of section 470 of Ky. Statutes makes such promises unenforceable. See Wesley v. Wesley, 181 Ky. 135, 204 S.W. 165; Glazebrook v. Glazebrook, 227 Ky. 628, 13 S.W.2d 776. We find no case from this state dealing with this particular question directly, except Floyd v. Martin, 12 Ky. Op. 42, which alone would be sufficient authority to hold this conveyance void, but these are old and rather universal statutes dating back to Elizabeth and beyond, and we find this situation so well discussed in Manning v. Riley, 52 N. J. Eq. 39, 27 A. 810, 812 that we shall quote rather freely from that opinion.

In that case, the debt upon which Manning's judgment was founded arose in 1883. The debtor, John M. Riley, married Margaret A. Riley, August 15, 1878, he deeded her his property on February 14, 1888, pursuant to an antenuptial oral promise fully proven. Mr. and Mrs. Riley had both been previously married, and they arranged for this venture rather calmly and carefully, but here are some very pertinent excerpts from that opinion:

"Sir John Romilly, M. R., in Warden v. Jones, 23 Beav. 487, 490, held that where a man enters into a parol contract with his intended wife, and nothing follows but the marriage, the marriage cannot be treated as part performance, and that carrying into effect the parol contract after marriage, by a deed, amounts to no more than a voluntary settlement. ***

Now, if an antenuptial parol promise to make a settlement cannot be made the foundation of an action,--and that is the express mandate of the statute,--it follows, necessarily, that such a promise imposes no legal duty on the promisor. By making it no legal duty is imposed, or obligation incurred; and its breach, consequently, creates no legal liability. Its performance, therefore, is an act of pure grace,--the doing of a favor, and not the doing of a duty,--and so is voluntary, in the strongest sense of that term. But it has been said that, while such a promise imposes no legal duty, it creates a moral obligation, and that such an...