Roberts v. Phillips
| Decision Date | 05 March 1874 |
| Citation | 74 Ky. 11 |
| Parties | Roberts and wife v. Phillips, & c. |
| Court | Kentucky Court of Appeals |
APPEAL FROM THE MARION CIRCUIT COURT.
RUSSELL & AVRITT, For Appellants,
| Bigelow on Estoppel, pp. 10, 160. | Act of March 10, 1856. |
W. B HARRISON, R. H. ROUNTREE, For Appellees,
CITED
Civil Code, secs. 467, 469, 470, 120, 35, 40.
Revised Statutes, 1 Stanton, pp. 556, 509, 555.
Loughborough's Digest, pp. 240, 241.
Herman on Estoppel, pp. 48, 49, 103.
| 4 Binn. 11, Heller v. Jones | 22 Barb. 278 |
| 34 Penn, 223 | 9 Pick. 139. |
| 14 Johnson, 572. | 3 Sneed, 252. |
In December, 1865, certain creditors of James Crowdus brought a suit in equity in the Marion Circuit Court against him for the purpose of having it adjudged that a certain conveyance theretofore made by him to another creditor in satisfaction of that creditor's debt against him operated under the act of 1856, entitled " An act to prevent fraudulent assignments in trust for creditors, and other fraudulent conveyances" (1 Revised Statutes, 553), to transfer and assign all the estate and effects of the said Crowdus for the benefit of all his creditors, and to have his estate sold and distributed according to the provisions of that act.
Such proceedings were had that a judgment was rendered as prayed for. The cause was then referred to the master commissioner to hear proof and report the debts of Crowdus. The commissioner made report of all the debts produced to him; and on the 7th day of March, 1868, a pro rata distribution of the whole fund was ordered to be made among the creditors whose debts had been reported; but no distribution was in fact made until some time in the year 1869.
On the 11th day of March, 1873, this suit was brought by the appellants, Roberts and wife, against a part of the creditors to whom the proceeds of the estate of James Crowdus had been distributed. They alleged, in substance, that Crowdus was the father and statutory guardian of Mrs. Roberts, and that he had received as guardian large sums of money belonging to her; that he had departed this life; and after applying all the assets of his estate over and above funeral expenses and costs of administration toward satisfying his indebtedness to her, there remained due about the sum of $1,000.
They further alleged that while the proceedings against James Crowdus were pending Mrs. Roberts was an infant, and that she was not a party to the suit, and her debt was not presented or allowed, and that under the provisions of the act supra she was entitled to have her entire demand against her guardian paid out of his estate before any part of it could be lawfully distributed to the common creditors, and they prayed for judgment against the defendants, in proportion to the amount received by them respectively, for a sum sufficient to satisfy the balance of the debt due to her.
They failed to make parties several of the creditors who had shared in the distribution of the estate, but alleged that they were either non-residents of the state or insolvent.
Because these creditors were not also made parties the defendants demurred to the petition, on the ground that there was a defect of parties to the action; but their demurrer was overruled. On a final hearing the court dismissed the petition, and Roberts and wife have appealed.
The following facts are established by the record:
1. That James Crowdus was the statutory guardian of Mrs. Roberts, and as such received a considerable sum of money for her, about $1,000 of which has never been accounted for to her or to any one for her.
2. That Crowdus died insolvent.
3. That Mrs. Roberts was not a party to the suit under the act of 1856 against her guardian.
4. That she was an infant at the time the judgment was rendered finally settling the rights of James Crowdus's creditors as to the distribution of his estate, but that she was married before that time, and that her husband was an adult at the time of their marriage.
5. That the creditors who received a part of the estate of Crowdus and are not sued are either insolvent or non-residents of the state.
Whether, in view of these facts, the creditors of James Crowdus who are sued can be compelled to contribute out of the money received by them from the estate of the guardian toward satisfying the demand due to Mrs. Roberts from her late guardian must depend upon the proper construction of the act under which his estate was distributed.
The first section of the act provides " that every sale, mortgage, or assignment which shall be made by debtors in contemplation of insolvency, and with the design to prefer one or more creditors to the exclusion in whole or in part of others, shall operate as an assignment and transfer of all the property and effects of such debtor, and shall inure to the benefit of all his creditors, except as herein provided, in proportion to the amount of their respective demands, including such as are future and contingent," etc.
The second section provides that all such transfers shall inure to the benefit of creditors generally, subject to the control of courts of equity, upon the petition of any person interested, filed within six months after the recording of such transfer or the delivery of the effects transferred.
The third section provides that suits and proceedings under the act, as to the mode of proving claims and otherwise, shall be conducted as suits and proceedings for the settlement of the estates of deceased persons are required to be conducted, so far as the same are applicable.
Section 7 provides that " in the distribution of the assets of any...
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