Lillard v. McGee

• Decision Date: 03 October 1815
• Citation: 7 Ky. 165
• Parties: Lillard v. M'Gee.
• Court: Kentucky Court of Appeals

7 Ky. 165

Lillard v. M'Gee.

Court of Appeals of Kentucky.

October 3, 1815

Pending an action of slander, Lillard conveyed his property to his father-in-law, with the avowed intention of defeating the effect of the action; he sold at auction without previous notice or advertisement.

He continued in the possession exercising acts of ownership after the sale.

It was of all his estate without any apparent necessity or sufficient motive; these are badges of fraud.

A person who recovers a judgment in slander is a creditor within the meaning of the statute.

And subsequent as well as previous creditors are within its provisions.

Frauds vitiated at common law.

But that fraud must have been to the prejudice of a pre-existing right, to avoid the sale and in this respect the statute varies from the common law.

But one who is injured in his reputation has such a pre-existing right as to avoid the sale for the purpose of satisfying the after liquidated damages.

Property so fraudulently conveyed may be sold by execution.

But a Court of Equity has nevertheless jurisdiction of the fraud to clear away the impediment to a full price for the property when exposed for sale.

OPINION

BOYLE Chief Justice.

PENDING an action of slander, brought by M'Gee against Lillard the latter sold and conveyed his real and personal estate to his father-in-law Hughes; and M'Gee having in a few days thereafter obtained a judgment in the action of slander for a considerable sum, filed his bill against Lillard and Hughes to set aside the sale and conveyance as fraudulent, and to subject the propetry to be sold in satisfaction of the judgment. The Court below pronounced a decree accordingly; from which this appeal is prosecuted.

It is impossible not to believe that the sale in this case was fraudulent. Besides the express avowal of Lillard that he would make a conveyance of his property to defeat the recovery in the action of slander, the transaction is accompanied with all the usual badges of fraud. The sale was of all his estate, without any apparent necessity or motive of propriety for it. It was made pending the action, and under the form of an auction, without having previously advertised or otherwise having made it generally known; and notwithstanding the sale was absolute and unconditional Lillard continued in the possession of the property, exercising acts of ownership over it. The sale must therefore be...