Noel v. Gaines

• Decision Date: 13 February 1902
• Citation: 66 S.W. 625
• Parties: NOEL v. GAINES et al. [1]
• Court: Kentucky Court of Appeals

66 S.W. 625

NOEL v. GAINES et al. ^[1]

Court of Appeals of Kentucky.

February 13, 1902

Appeal from circuit court, Franklin county.

"Not to be officially reported."

Action by John C. Noel against John W. Gaines and wife to set aside a conveyance as fraudulent. Judgment for defendants, and plaintiff appeals. Affirmed.

D. W Lindsay and John W. Rodman, for appellant.

Jas. A Violett and Frank Chinn, for appellees.

BURNAM J.

The appellant, John C. Noel, brought this suit in December, 1896 seeking to subject a house and lot which had been conveyed by J. M. Wakefield to the appellee Bettie Gaines in May, 1893 to the payment of certain alleged indebtedness due by John W Gaines. He says that on the 8th of May, 1893, he became surety for him upon a note for $4,750 to the State National Bank; that this debt was renewed, and partial payments made thereon, resulting in a note for $2,984.28, which he was compelled to pay as surety in December, 1896; that in July, 1894, he and John B. Gaines became sureties for John W. Gaines to the same bank upon a note for $4,000, which was renewed several times, and he was finally compelled to pay it as surety; that in May, 1893, after the execution of the note to the bank, J. W. Gaines purchased a house and lot in Broadway street, in the city of Frankfort, from J. M. Wakefield, at the price of $6,000, and paid $4,500 of the purchase money out of the proceeds realized by the discount of the identical note signed by him as security on the 8th of May, 1893, and had the title taken to his wife, Bettie Gaines, without valuable consideration, in fraud of his rights as a creditor. The defendant in her original and amended answer denies the alleged fraudulent intent in the purchase and conveyance of the house and lot from Wakefield, or that the purchase money or any part thereof was paid by her husband, John W. Gaines. On the contrary, she alleges that, while her husband acted as her agent in the negotiations which led up to the purchase of the property from Wakefield, she placed in his hands notes aggregating about $6,000, for the purpose and with direction to use them in the purchase of the house and lot, and that, while it was true that a part of the proceeds of the note borrowed from the State Bank was used by him in the payment of the property, he had in his possession the notes which she had placed in his hands for the purpose, and which he subsequently collected and used to reimburse himself for the moneys so advanced by him, and denied plaintiff's right to subject the property or any part of it to the debt sued for. Appellant, by reply, denied that John W. Gaines acted in the purchase of the property only as the agent of his wife, or that she furnished the means with which to pay for the property, or that she had any means to furnish. The proof establishes that $3,000 of the money borrowed on the note, dated May 8, 1893, was used by J. W. Gaines in payment of a lien note executed by Wakefield to one Bush as a part of the purchase price of the property which had been assigned by Bush to the Bank of Kentucky, and which was a lien upon the property, and that $1,500 of the money was used to pay off other notes due the same bank by Wakefield which were liens upon the property, and that the remaining $1,500 was applied to the payment of a note which had been paid by J. W. Gaines as security for Wakefield, and these liens upon the property were subsequently released. And the appellant, J. C. Noel, testifies that at the time he signed the note of May 8, 1893, Gaines informed him that he intended to use the money to pay for the Wakefield property, which he had purchased in order to collect the $1,500 which he had been compelled to pay as Wakefield's security, and that he did not know for several years after the transaction that the title to the property had been taken to the appellee Mrs. Gaines. Mrs. Gaines, on the...