Poynter v. Mallory

• Decision Date: 18 May 1898
• Citation: 45 S.W. 1042
• Parties: POYNTER et al. v. MALLORY et al. [1]
• Court: Kentucky Court of Appeals

45 S.W. 1042

POYNTER et al. v. MALLORY et al. ^[1]

Court of Appeals of Kentucky.

May 18, 1898

Appeal from circuit court, Warren county.

"Not to be officially reported."

Action by John H. Mallory and others against Mattie L. Poynter and others to set aside a conveyance as fraudulent. Judgment for plaintiffs, and defendants appeal. Reversed.

John M Galloway, for appellants.

Lewis McQuown, for appellees.

WHITE J.

On May 2, 1885, F. T. Poynter was appointed guardian of Norburn Alexander, and qualified as such, and executed bond, with appellees John H. Mallory and O. C. Carson as sureties. On December 29, 1885, F. T. Poynter purchased of one Loving a tract of land for the price of $4,625.90, of which $1,500 was paid cash. The deed to this land was made to appellant Mattie L Poynter, wife of F. T. Poynter. This deed was duly acknowledged on the day of its date, but was lodged for record and recorded in the Warren county clerk's office on the 6th day of August, 1888. On December 28, 1891, F. T Poynter, being required so to do, gave additional surety on the guardian's bond. These sureties were Potter, Cooksey, and Sweeny, appellees. In September, 1892, on a settlement of the accounts as guardian, it was ascertained that Poynter was due his ward $839.63, and on that day he was removed, and one Galloway appointed guardian. Poynter failing to pay over to the new guardian, suit was brought on the two bonds against Poynter and the two sets of sureties, December 28, 1892, and judgment was rendered thereon and satisfied by the sureties, December 28, 1893; they taking an assignment of the judgment, and issuing execution, which was returned "No property found," against Poynter; and thereupon the sureties brought this action in the Warren circuit court, seeking to set aside and declare fraudulent and void the deed to the land to Mattie Poynter, wife of F. T. Poynter, made December 29, 1885, by Loving. The reason assigned is that at its date F. T. Poynter was insolvent, and the same was made to the wife for the fraudulent purpose of cheating, hindering, and delaying his creditors, of whom these appellees, sureties on the guardian's bond, were part. The answer denies the alleged insolvency at the date of the execution of the deed, and the alleged fraudulent purpose to cheat, hinder, or delay creditors, but affirmatively alleges that it was made to the wife, appellant, in pursuance to an agreement of F. T. Poynter to repay to the wife certain of her funds used by him, and that this deed was but a fulfillment of that agreement to repay, and that the deed was not voluntary and without consideration, but was for the consideration stated, and was fair and equitable. Another defense pleaded is the statute of five years' limitation. Defendants also pleaded that, at the date of the deed to Mattie L. Poynter, the guardian, F. T. Poynter, was not indebted to the ward Alexander but a very small sum, and that, as to the debt paid by appellees as sureties on the guardian's bond, they were subsequent creditors, and there could have been no fraud as to them. The reply denied that at the date of the deed the indebtedness to the ward was insignificant, and also replied that they did not discover the fraud practiced in the deed being made to the wife until within a year before the action was begun, and that because F. T. Poynter had taken possession of the land, and used same, and claimed to own same, and had listed it for taxation as his own, these appellees did not discover, and could not with reasonable diligence have discovered, the fraud till they did, which was about the time they were sued on the guardian's bond.

On the issues thus raised much proof was taken, and on final trial the court adjudged the deed fraudulent and void, and subjected the said land to the payment of appellees' debt, after the payment of other prior mortgage liens thereon. From this judgment and decree this appeal is prosecuted.

Appellees present the question as to the sufficiency of the answer as to the denials of the alleged fraud in making the deed to the wife, appellant. We are of opinion that, taking the answer as a whole, it sufficiently denies the alleged fraud. Appellees did not raise this question by demurrer, but evidently treated same as a denial by filing reply thereto and taking much proof on that issue. We...