R. T. Elswick & Co. v. Scott

• Decision Date: 27 June 1928
• Citation: 225 Ky. 309,8 S.W.2d 398
• Parties: R. T. ELSWICK & CO. et al. v. SCOTT et al.
• Court: Kentucky Court of Appeals

8 S.W.2d 398

225 Ky. 309

R. T. ELSWICK & CO. et al. v. SCOTT et al.

Court of Appeals of Kentucky

June 27, 1928

Appeal from Circuit Court, Pike County.

Action by R. T. Elswick & Co. against Frank R. Scott. From judgment sustaining a general demurrer to the petition, the plaintiffs appeal. Reversed and remanded.

Johnson & Hinton and O. T. Hinton, all of Pikeville, for appellants.

Moore &amp Childers, of Pikeville, for appellees.

HOBSON C.

The Kanawha Elkhorn Collieries owned the land in controversy. It became insolvent, and an action was brought against it to subject its property to the payment of its debts. The land was ordered sold; the sale was made on October 5, 1925; R. T Elswick and R. C. Rowe, who were two of its creditors, bought the property for $5,400, which was less than two-thirds of its appraised value. The sale was duly confirmed, but no deed was made to the purchasers, as the land had not sold for two-thirds of its appraised value. On September 21, 1926, the Kanawha Elkhorn Collieries, by a quitclaim deed, conveyed the property to Rushia R. Scott. The deed recited a consideration of $1 in hand paid, together with other good and valuable consideration. It was lodged for record on September 29 1926. Rushia R. Scott then tendered to the purchasers the redemption money with interest at 10 per cent. They refused to accept it. She then paid the money to the clerk of the court, as provided by sections 2364, 2365, Kentucky Statutes. On October 4, 1926, the purchasers made an agreement with the other creditors extending the time for redemption, and on March 16, 1927, they and certain creditors brought this action for themselves and all other creditors, alleging in their petition the above facts, also that the conveyance made by the Kanawha Elkhorn Collieries to Rushia R. Scott was made with the intent to delay, hinder, and defraud the plaintiffs and its other creditors, and that these facts were known to Rushia R. Scott at the time the conveyance was made, and that she and her codefendants claiming under her had notice of such fraudulent intent at all times thereafter. They further alleged that this conveyance was made without valuable consideration, and that each of the defendants had notice of this fact when they acquired any interest in the property. The circuit court sustained a general demurrer of the defendants to the petition. The plaintiffs appeal.

When the debtor's property is sold under execution or the judgment of a court to pay his debt, the title does not pass to the purchaser until the year allowed for redemption expires, if the property does not sell for two-thirds of its appraised value. In Rogers v. Beam, 169 Ky. 239, 183 S.W. 930, where the debtor's land had...