Mannen v. Bradberry
| Decision Date | 12 May 1883 |
| Citation | 4 Ky.L.Rptr. 951,81 Ky. 153 |
| Parties | Mannen, & c., v. Bradberry. |
| Court | Kentucky Court of Appeals |
1. The allegation of fraud is unsupported by proof.
2. Appellant was not a creditor at the time of, or pre-existent to, the purchase of the land.
3. When an express promise comes within the statute of frauds, or a trust which the law would enforce was undertaken, and the statute which cuts off resulting trusts prevents a recovery of the subject purchased with the trust funds, the law will raise a promise to return the consideration of the contract or trust which the party undertaking to perform has received.
APPEAL FROM MASON CIRCUIT COURT.
WHITAKER & ROBERTSON AND WM. LINDSAY FOR APPELLANTS.
1. The petition fails to aver that appellee had obtained a judgment and execution and return of nulla bona.
2. There is a complete failure to show any fraud whatever.
3. The cases cited by appellees are not in point.
4. The dictum of Judge Williams in Martin v. Martin, 5 Bush, 41, does not support the judgment appealed from.
5. The petition does not show a cause of action.
BARBOUR & COCHRAN FOR APPELLEE.
1. A purchase by a debtor in the name of another is fraudulent as to the existing liabilities of the debtor. (Secs. 19 and 20 ch. 63, Gen. Stat.; 3 Mon., 157; 1 Dana, 531; Baker v Dobyns, 4 Dana, 220; 1 Duv., 242; Bump on Fraud, 237; 2 Bush, 415.)
2. It is not necessary that a creditor should have a judgment and return of nulla bona in order that he may attack a conveyance or a purchase in another's name. (1 Barb Dig., 730; 4 Litt., 202.)
3. If one conveys land to another, and a third person pays the consideration, no use or trust results, but a personal claim arises in favor of the payer against the party to whom the land is conveyed. (Gen. Stat., ch. 63, sec. 19; 3 Bush, 98; 5 Ib., 47.)
In 1865 Bradberry bought a tract of land from David Mannen for the price of $8,138.
James E. Pepper was the father-in-law of appellant, David Mannen and the father of the appellant, Comfort Ann Mannen.
He purchased a tract of 193 acres of land from Winter on the 1st of March, 1866, for which he paid him $8,701, and put David Mannen and wife in possession of 143 acres, 2 roods, and 18 poles of it, agreeing that so long as David Mannen paid the taxes no rent would be charged.
At or about the time of the purchase from Winter, David Mannen was largely indebted to Pepper on account of money paid for him as surety, and Pepper was still bound for a considerable sum as his surety.
For the purpose of reimbursing him, and to indemnify him on account of suretyship, David Mannen delivered to Pepper one of the notes executed by Bradberry, amounting to about $4,000.
Pepper collected the note from Bradberry, and used it in paying Winter for the land which was conveyed to him on the 1st of March, 1866, as stated.
In the fall of 1866 Bradberry became the surety for David Mannen, and was subsequently compelled to pay as such for him $656.37 and $168 at different periods.
David Mannen and his family lived on the land until Pepper's death, which occurred in 1875.
After Pepper died, in September, 1875, his heirs, " in consideration of good and sufficient reasons … and $1," conveyed the 143 acres, 2 roods, and 18 poles to the appellant, Comfort Ann Mannen.
In 1878 Bradberry brought this action to recover the money paid for David Mannen as his surety, and to set aside that deed on the ground of fraud, and because, as is alleged, that David Mannen delivered the note of Bradberry to Pepper, who used it in paying Winter for the land to the extent of the value of the 143 acres, 2 roods, and 18 poles, and who " thereupon became liable to the said David Mannen for the amount so paid, as so much paid to Pepper's use." It is further alleged that " the liability of Pepper to Mannen, after its creation, could be subjected in equity to the payment of said Mannen's debts, if he had any during its existence."
We will first consider the question of fraud.
The evidence fully sustains the fact that David Mannen was indebted to Pepper, and Pepper was his surety for at least as much as the amount of Bradberry's note, which David Mannen delivered to Pepper, and that at that time David Mannen was insolvent and has ever since so remained.
It appears that Pepper omitted all reference in his will to the land he had put David Mannen and wife in possession of because he did not wish to make a difference between his children in the disposition of his estate, and desired them to decide whether they would make the inequality by donating their descendible interest in the land to their sister, Mrs. Mannen, whose husband...
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