Jones' Adm'r v. Jenkins

• Decision Date: 19 November 1885
• Parties: Jones' Adm'r v. Jenkins, & c.
• Court: Kentucky Court of Appeals

83 Ky. 391

7 Ky.L.Rptr. 408

Jones' Adm'r v. Jenkins, & c.

Court of Appeals of Kentucky.

November 19, 1885

APPEAL FROM CALDWELL CIRCUIT COURT.

G. W DUVALL FOR APPELLANT.

1. The plea of the defendant that the note and mortgage were executed without a " valid " consideration was not sufficient. (Willett v. Forman, 3 J. J Mar., 293; Helm's Ex'r v. Jones' Adm'r, 9 Dana, 27; Morton v. Waring's Heirs, 18 B. Mon., 82.)

2. The plaintiff was entitled to judgment on the pleadings, as every allegation of a pleading is to be taken as true, unless specifically traversed. (Civil Code, sections 95 and 126; Trustees Ky. F. O. S. v. Fleming, Ex'r, & c., 10 Bush, 238; Preston v. Roberts, & c., 12 Bush, 581.)

3. The rule that a man shall not take advantage of his own wrong applies in this case. (Bibb v. Bibb, & c., 17 B. M 307; Brookover v. Hurst, 1 Met., 668; Martin v Martin, & c., 5 Bush, 54.)

4. A party is estopped to deny any fact which, by his own deed, he has admitted. (Rau & Rieke v. Boyle & Boyle, 5 Bush, 262; Fitzhugh's Heirs v. Tyler, 9 B. Mon., 561; Breckinridge, & c., v. Ormsby, 1 J. J. Mar., 255; Lyne v. Bank of Ky., 5 J. J. Mar., 569.)

JAMES R. HEWLETT FOR APPELLEES.

1. A court of equity will not enforce a mortgage given without consideration, and for the purpose of defrauding the mortgageor's creditors. (Enders v. Williams, 1 Met., 348; 34 Am. Dec., 765, 767.)

2. As the note sued on was without consideration, the court properly refused to give judgment for the amount thereof. ( Brookover v. Hurst, 1 Met., 668.)

OPINION

PRYOR JUDGE:

This action was instituted by the administrator of Wm. E. Jones against the appellee, J. J. Jenkins, in which a judgment is sought on a note executed by Jenkins to the intestate for $1,138 on the 28th of August, 1869, and payable two days after date, and a mortgage having been executed to secure its payment on the real and personal estate of the obligor, the Chancellor is also asked to sell this mortgaged property in satisfaction of the debt.

The appellee Jenkins admitted the execution of the note, but pleaded a want of consideration; and further, that the note was executed and the mortgage given to prevent his creditors from making their debts.

The appellant took issue upon the defense presented, and alleged that the note was given for debts and money loaned the appellee by his intestate. An amended petition was then filed by the administrator, in which it is alleged that T. Y. Jenkins, Sarah E. Hobby, & c., appellees here, had, since the execution and recording of the mortgage, purchased the land of the mortgageor or were setting up some claim to it. These parties answered, admitting the purchase of the land, and alleging that they had paid for it a valuable consideration, and that the note and mortgage given to the appellant's intestate were for the sole purpose of enabling Jenkins to defraud his creditors.

The testimony in the case conduces to establish the fraudulent intention of the parties to the note and mortgage, and that no consideration existed for the execution and delivery of either instrument.

The intestate was a man of but limited means, and in no condition to indulge the appellee, Jenkins, for nine or ten years in the payment of such a sum of money, and besides, to permit him, without complaint, so far as appears from this record, to convey the security given for the debt to others, and deliver to them the possession. Jones, the obligee in the note and appellant's intestate, lived until the year 1881 without any effort to coerce payment, and when he must have known that this land was sold, or the greater part of it, by Jenkins, and deeds made to the purchasers.

There is no attempt to show any indebtedness on the part of Jenkins to Jones, except on the sale of one crop of tobacco, and there is no proof that the value of this tobacco approximated even the amount of the note. It was not worth exceeding three hundred dollars. The parties were brothers-in-law, and the circumstances connected with the entire transaction leave but little doubt as to the origin of the claim sought to be enforced.

The transaction between Jenkins and Jones being actually fraudulent, the purchasers for value are not affected by either a constructive or actual notice of the mortgage.

The rule is that a voluntary conveyance is prima facie fraudulent as to a subsequent purchaser for value, and unless the purchaser has actual notice of the transfer or conveyance, his title is perfect, and in no manner affected by the fact that the voluntary conveyance is of record. Actual and not constructive notice must be brought home to the purchaser. This is not a mere voluntary conveyance,...