Morgan v. Lewis
| Decision Date | 15 December 1916 |
| Citation | 172 Ky. 813 |
| Parties | Morgan, Sr., et al. v. Lewis. |
| Court | Kentucky Court of Appeals |
Appeal from Leslie Circuit Court.
J. M. MUNCY, J. M. BICKNELL and O'REAR & WILLIAMS for appellant.
CLEON K. CALVERT for appellee.
On April 6, 1898, the appellee (plaintiff below) through his statutory guardian, John W. Harvey, recovered judgment in the Leslie Circuit Court against appellant, A. B. Morgan, Sr. (defendant below), and Zachariah Morgan, sureties upon the bond of the administrator of Daniel Lewis, the father of G. C. Lewis, for the sum of $2,416.87, to be credited as of that date by the sum of $1,375.75, the net judgment being $1,041.12.
On January 15, 1906, plaintiff having arrived at the age of 21 years, brought this suit upon a return of no property found against A. B. Morgan, Sr., Zachariah Morgan and some other defendants, by which it was sought to appropriate to the payment of the judgment certain credits and evidences of debt which it is alleged the other defendants owed the two Morgans. These defendants, in addition to being made parties to the suit, were served with attachments, and the funds which it is claimed that they owed to the judgment debtors were attempted to be garnished. During the progress of the cause the wives of the two Morgans were made defendants, it being alleged against them that their respective husbands conveyed, or caused to be conveyed, to each of them fraudulently and with the intent to cheat, hinder and delay the creditors of their husbands, certain described tracts of land which are sought to be appropriated to the payment of the judgment of plaintiff by having the deeds thereto executed by the husbands cancelled and the lands sold. Before the submission of the case Zachariah Morgan paid his part of the judgment and he and the defendants who had been brought into the case on his branch of it were proceeded against no further, the suit appearing to have been abandoned so far as they were concerned.
The allegations made in the petition and amendments as to the defendants, A. B. Morgan, Sr., and wife, were each denied by them, and it was affirmatively pleaded that the lands sought to be subjected in the manner stated were in truth and in fact the property of the wife of A. B. Morgan, Sr., the appellant, Martha Morgan. These allegations being controverted, and the cause being submitted by agreement to Hon. J. M. Benton, the Circuit Judge of the Clark Circuit Court, he rendered judgment in favor of the plaintiff directing the money in the hands of the garnishees to be applied to the payment of the remaining portion of the indebtedness after crediting it by the sum paid by Zachariah Morgan, and ordering a sufficiency of the land sold to pay any deficit, should any exist, and from this judgment, A. B. Morgan, Sr., and his wife, Martha Morgan, prosecute this appeal.
The testimony in the case may be said to show quite conclusively these facts: The defendant, Martha Morgan, is the daughter of John D. Pace. She had two sisters, Eliza Pace and Nannie Pace, and a brother, John W. Pace, and the four, with the widow of John W. Pace, were the only heirs at law left by the latter at the time of his death, which occurred some time previous to the 28th day of February, 1871. On that day two of the heirs, John W. and Eliza Pace, each deeded their one-fourth undivided interest in and to a tract of land consisting of about 1,000 acres in Leslie County, which they inherited from their father, to the defendant, A. B. Morgan, Sr.
On April 18, 1884, Nannie Pace conveyed her interest as an heir of John D. Pace in said tract of land to A. B. Morgan, Sr., and he, somewhere about this time, purchased the dower interest of the widow of John D. Pace in and to the same tract. These conveyances vested in A. B. Morgan, Sr., the dower interest of the widow in said tract of land and a three-fourths undivided interest in the fee to same, his wife owning the other one-fourth undivided interest by inheritance from her father. From time to time small tracts were sold by A. B. Morgan, Sr., and his wife from the 1,000-acre tract, and timber was likewise sold from it, and the persons garnisheed herein are those who were indebted for some of the unpaid purchase money for land thus purchased by them, or for timber which had been purchased from the land. These attached debts were created since the obtention of the judgment sought to be collected herein, and they were made payable to the defendant, Martha Morgan, instead of to her husband, which transactions are attacked as having been fraudulently made for the purpose of defeating the collection of this and other debts of the husband. With the proceeds of land sold, as hereinbefore stated, the lands in controversy were purchased and the deed made to A. B. Morgan, Sr.
On December 4, 1902, A. B. Morgan, Sr., and wife deeded the land to one Jasper Morgan for a recited consideration of $1,200.00, only $25.00 of which was paid at the time, and on December 15 following, being only fourteen days thereafter, Jasper Morgan and wife conveyed the land to the defendant, Martha Morgan, for the same recited consideration. Neither of them was actually paid. The first deed just mentioned is claimed to have been made in satisfaction of a title bond which had been executed to Jasper Morgan by A. B. Morgan, Sr., and wife in 1897, and after he became surety on the bond upon which the judgment was recovered but before it was obtained. However, this bond is not filed in the transcript, and we know nothing of its existence or its contents except the statements of A. B. Morgan, Sr., found in his testimony.
Somewhere about the date of the execution of the deed to Jasper Morgan, executions against A. B. Morgan, Sr., amounting to about $110.00 were levied upon the land, and it was, according to the oral testimony, advertised to be sold, and it is claimed by the defendants that it was sold for the amount of the execution, but we are not favored with any record evidence of this fact and it is certain that no deed was ever executed to Martha Morgan, who claims to have purchased it at such execution sale. The husband testified, however, that his wife did pay the amount of the executions, which stopped the proceedings of the sheriff thereunder.
It is insisted that this transaction put the title to the land in the defendant, Martha Morgan, and of course extinguishing all interest in it theretofore owned by her husband. It is furthermore insisted by defendant, Martha Morgan, that the consideration for the deed of John W. Pace and Eliza Pace to her husband for their respective interest in the 1,000 acres of land before mentioned was a conveyance by her of her one-fourth interest in and to another body of land which her father owned and in which she inherited a one-fourth interest situated in Clay County, but we fail to find in the record any evidence of this fact, there being no deed or other character of paper indicating any conveyance by her to any lands in the latter county. But whether true or false cannot affect the question involved as we shall later see.
Because of these two contentions it is insisted that the only interest, if any, which A. B. Morgan, Sr., who is the judgment debtor, owned in any of the property sought to be subjected is a one-fourth undivided interest which he obtained from his purchase from Nannie Pace, and that the judgment subjecting the two interests of John W. and Eliza Pace deeded to him in 1871 is in any event erroneous. But it is further insisted that none of the land should have been subjected to the payment of the judgment because of the contention that defendant, Martha Morgan, obtained the entire title to it by virtue of the supposed execution sale referred to.
Considering the last point mentioned, the evidence does not convince us that the proceedings under the execution divested A. B. Morgan, Sr., of title to the land, so as to put it beyond reach of his creditors. It is not satisfactorily shown that these executions were discharged with money belonging to Martha Morgan, although it is attempted to be so stated in a way by her husband, but when we reflect that his testimony shows that, as the head of the household and the title holder of all the land which the family occupied and enjoyed, he transacted all the business in the way of...
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