Scherer v. Christian Moerlein Brewing Co.

• Decision Date: 06 December 1901
• Citation: 65 S.W. 448
• Parties: SCHERER v. CHRISTIAN MOERLEIN BREWING CO. et al. [1]
• Court: Kentucky Court of Appeals

65 S.W. 448

SCHERER v. CHRISTIAN MOERLEIN BREWING CO. et al. ^[1]

Court of Appeals of Kentucky.

December 6, 1901

Appeal from circuit court, Campbell county.

"Not to be officially reported."

Action by the Christian Moerlein Brewing Company and Annie Wenderoth against Henry Scherer and another, to have certain deeds declared to have been made in contemplation of insolvency and to operate as an assignment for the benefit of creditors. Judgment for plaintiffs, and the defendant Henry Scherer appeals. Reversed.

C. J. &amp W. W. Helm and Otto Wolff, for appellant.

Samuel C. Bailey and H. Gunkel, for appellees.

DU RELLE, J.

The appellee company and Annie Wenderoth brought their suit in equity to have two deeds from one Weber to appellant Scherer, his brother-in-law, adjudged to have been made in contemplation of insolvency, and with the design to prefer Scherer, who was a creditor, to the exclusion of other creditors, and to operate as an assignment of his property for the benefit of all his creditors. By an amended petition it was alleged that the deeds were executed with the intent to cheat and defraud the plaintiffs and other creditors of Weber. The circuit court adjudged the deeds to operate as an assignment, and adjudged Scherer to take pro rata with other creditors in the distribution. The first deed was of one tract of land, for a recited consideration of $900. There was upon this lot a mortgage to a third party for $600, and various claims for unpaid taxes, amounting in all to a sum within a very few dollars of the purchase price. The other deed was for three tracts of land, for a recited consideration of $100, and other good and valuable considerations; and these tracts were subject to a mortgage held by Scherer, and various other lien claims and unpaid taxes. Scherer claims to have canceled his mortgage discharged and received assignment of the other incumbrances and paid Weber $350 in cash, to make up the purchase price of the three tracts. By a most ingenious and plausible showing of account, based upon the prices which the lots brought at the commissioner's sale, counsel undertakes to show that a full price was paid for the property by the discharge of the lien claims against it and the payment of the $350 though the prices at the commissioner's sale were far below the appraisement, and still further below the assessed value for taxation. His argument is that as the lien claims discharged by Scherer and the money paid by him amount to a little more, in the aggregate, than the property actually sold for, he cannot even be said to have paid an inadequate price for the property. The argument of the circuit judge in his opinion tends to the conclusion that the transactions were fraudulent, and he remarks in conclusion that the conveyances must be set aside. But the judgment declares that the two conveyances "were each assignments by operation of law for the benefit of all the creditors of said Weber, and this cause is referred...