Lebus v. Wayne-Ratterman Co.

• Decision Date: 02 March 1893
• Citation: 21 S.W. 652
• Parties: LEBUS v. WAYNE RATTERMAN CO. et al.
• Court: Kentucky Court of Appeals

21 S.W. 652

LEBUS v. WAYNE RATTERMAN CO. et al.

Court of Appeals of Kentucky.

March 2, 1893

Appeal from chancery court, Harrison county.

"Not to be officially reported."

Action by Smith Arnold's administrator against the Wayne Ratterman Company, Clarence Lebus, and others, creditors, to set aside a mortgage given to defendant Lebus, and for a settlement of decedent's estate. From the judgment entered, Lebus and others appeal. Reversed.

J. Q Ward, J. T. Simon, and W. S. Hardin, for appellants.

J Irvine Blanton, for appellees, in support of the proposition that, in computing the time in which the action may be brought to set aside an instrument as in fraud of creditors the day on which the instrument was recorded should be excluded, cites Presbrey v. Williams, 15 Mass. 193; Sims v. Hampton, 1 Serg. & R. 411; O'Connor v. Towns, 1 Tex. 107; Arnold v. U.S., 9 Cranch, 104; Bemis v. Leonard, 118 Mass. 502; Menges v Frick, 73 Pa. St. 137; Sheets v. Selden's Lessee, 2 Wall. 177; Pearpoint v. Graham, 4 Wash. C. C. 232; Lester v. Garland, 15 Ves. 248; Hardy v. Ryle, 9 Barn. & C. 603; Gorst v. Lowndes, 11 Sim. 434; Pellew v. Inhabitants, etc., 9 Barn. & C. 134; Webb v. Fairmaner, 3 Mees. & W. 493; Mercer v. Oglivy, 3 Paton, 434; Suth. St. Const. §§ 111, 112; Warren v. Slade, 23 Mich. 1; Wait, Fraud. Conv. §§ 13, 226, 314; U.S. v. Amistad, 15 Pet. 594; Worseley v. Demattos, 1 Burrows, 467; 2 Kent, Comm. 484.

PRYOR J.

The mortgage to Clarence Lebus was lodged for record on the 22d of September, 1886; and on March 22, 1887, this action was filed, and the mortgage attacked, as being within the act of 1856. There is no actual fraud proven in the case, and none in fact exists, and, if constructively fraudulent, the action must be instituted within six months after the mortgage or transfer is legally lodged for record. Where the computation of time is from an act done, the day on which the act is done is to be computed, and in Chiles v. Smith's Heirs, 13 B. Mon. 460, it is said that "the day on which the decree was rendered must be included and regarded as the first day of the three years, and therefore the limitation expired on the day preceding the one on which the writ of error was sued out." The statute provided "that no writ of error shall be sued out except in three years next after the judgment or final decree." In that case the decree was rendered on the 18th of October, 1848 and the writ of error sued out on the 18th of October, 1851. See, also, Long v. Hughes, 1 Duv. 387; White v. Crutcher, 1 Bush. 472. If the statute had read "six months after the day the mortgage is legally lodged," then this suit would have been filed in time. Authorities referred to by counsel from other states, where a different rule prevails, cannot be adopted by this court. The rule is understood, and the one works no greater hardship than the other. The action not being brought in time, the moneys actually advanced on the loan must be accounted for, and the appellant given preference by reason of his mortgage. We are inclined to think that...