Robertson v. Robertson

• Decision Date: 17 November 1892
• Parties: Robertson et ux. v. Robertson.
• Court: Kentucky Court of Appeals

20 S.W. 543

Robertson et ux. v. Robertson.

Court of Appeals of Kentucky.

November 17, 1892

Appeal from circuit court, Ohio county.

"Not to be officially reported."

Petition by Tol Robertson for a lien on land levied on under execution against P. R. Robertson, and claimed by the latter's wife. Judgment for plaintiff. Defendants appeal. Affirmed.

Holt C.J.

The appellee, Tol Robertson, having a judgment against the appellant P. R. Robertson, sued out execution, which was levied on a tract of land that had been purchased of Jacob Tichenor. It was sold under the execution, and bid in by the creditor for a small sum. Subsequently he sued out another execution, which was returned, "No property." At the time of the levy and the sale of the land the debtor did not have the legal title to it Tichenor conveyed it to the debtor's wife after the creditor had brought suit upon his debt. This is alleged, and the attempted denial is evasive, and not sufficient. The creditor now brings this suit, claiming the land in fact belonged to his debtor although he had no deed to it; that by the levy upon it he acquired a lien for his debt, which he now seeks to enforce.

Various defenses are presented. The petition avers that the land was not exempt from execution, and was not occupied as a homestead. These averments are denied, and a claim to the land as a homestead is asserted by the appellants. They were but statements of legal conclusions, were surplusage, and did not place the burden on the plaintiff of showing that the debtor and his wife were not entitled to a homestead. It rested with them to so show, and there is no evidence to support the claim. The petition avers that the debtor, and not his wife, paid for the land; that it was conveyed to her after the institution of the suit, at her husband's instance, and in fraud of the creditor. The answer is not of a satisfactory character. It is true it denies that the husband paid for the land, or that the conveyance was fraudulent, or that the wife did not pay anything for it but, while it was a transaction with a third party, yet the relative rights of the husband and wife are involved, and such a transaction, occurring, as it did, after the creditor's suit was brought, is suspicious in character and the claim of the wife should be clearly and fully stated. In this instance interrogatories to the appellant were attached to the appellee's petition. It is true no...