Sparks v. Colson

• Citation: 109 Ky. 711,60 S.W. 540
• Parties: SPARKS v. COLSON et al. [1]
• Decision Date: 01 February 1901
• Court: Court of Appeals of Kentucky

60 S.W. 540

109 Ky. 711

SPARKS v. COLSON et al. ^[1]

Court of Appeals of Kentucky.

February 1, 1901

Appeal from circuit court, Bell county.

"To be officially reported."

Action by J. M. Colson, by next friend, against James Sparks and another, to enjoin the execution of a writ of possession. Judgment for plaintiff, and defendant James Sparks appeals. Affirmed.

N. B Hays, for appellant.

A. K Cook, for appellees.

O'REAR J.

It appears from this proceeding that W. G. Colson was possessed of considerable property in Bell county, Ky. from 1883 to about 1890, some by inheritance and some by purchase. He had married a daughter of J. M. Wheeler, who also owned an estate of some $40,000. While in solvent circumstances, Colson purchased a tract of land, for speculation apparently situated in Bell county, his father-in-law paying one-third the consideration for it, and Colson the remainder, the title to which was taken to Colson under an agreement with the father-in-law and the wife that she was to own one-third of the land and its proceeds. It is not shown that Mrs. Colson ever knew that her husband took title to this tract of land to himself alone, or that she consented that he might do so. The proven agreement was that she was to own one-third of the land and its proceeds. Subsequently Colson sold this land and other property to the Pine Mountain Iron & Coal Company taking in exchange about $1,300 in cash, and notes to himself for $5,000, and agreeing to take the two lots in controversy in this suit, being lots Nos. 10 and 11 of block 13, Pine Mountain Iron & Coal Company's addition to the town of Pineville. This was during the boom period, when values of all properties in that section were more or less inflated, and of town lots especially so. The sale of the land known as the "Collins Tract," in which Mrs. Colson or her father had the interest stated, was made in 1890, during her lifetime (she having died in August, 1890), but was not conveyed until January, 1891. Then it seems that Colson, in attempted fulfillment of his agreement with his wife and the father-in-law, started to have the deeds to the Pineville lots made to Wheeler, but at Wheeler's direction caused the deed to be made to Colson's infant son, the appellee, J. M. Colson, son of his deceased wife. At that time Colson seems to have become extensively involved in debt, and was striving for time as against his creditors, resorting to many methods familiar in such transactions. Appellant, Sparks, subsequently procured a judgment against W. G. Colson for $97.93, and some $13 costs, on a liability antecedent to the deed to J. M. Colson, and caused the execution to be levied on the two lots, and became the purchaser at the sheriff's sale at the amount of his debt and costs. The lots were appraised at $1,000 ($500 each), which is shown to have been their fair value. Appellee, the infant, by his next friend, brought this action against the creditor and the sheriff, seeking to enjoin the execution of the writ of possession, the infant not having been a party to the proceeding under which the lots were attempted to be sold. The circuit court upheld the title of the infant, and perpetuated the injunction.

The principal questions for our consideration are: (1) Was the agreement and transaction between the debtor, W. G. Colson and his wife and father-in-law, such as could have been enforced against Colson? And (2) is that transaction, and Colson's attempt to execute that agreement, in violation of appellant's rights as Colson's creditor? Even in the absence of the numerous high authorities on the subject, we would have no hesitancy in adopting the views herein expressed. These authorities include many examined, but not cited. Those from this court, covering a long period, and the services of many of its most illustrious members, are deemed sufficient. The facts above stated are proven beyond question; indeed, are proved by witnesses introduced by appellant. There is no evidence to the contrary. The usual difficulty in applying the principles of this decision to cases attempted to be brought within their operation is the proof of the consideration moving the conveyance, and the question of fraud on the part of the debtor. The fact that the man is largely in debt, insolvent, and makes a preferential conveyance to his wife, are circumstances calculated to arouse suspicion, bringing seriously into question the truthfulness of the alleged agreement. An examination of the cases where the principles of this decision have been denied will show generally that the proof was not satisfactory, or tended to show positive fraud, or that the personalty of the wife had been reduced to possession by the husband without any agreement, and that the agreement for settlement on her and the settlement were made after he became insolvent, and many years after he had received her property. If this were an action by Mrs. Colson against her husband to compel the execution of the contract between them, we do not doubt that the chancellor would be amply justified in decreeing its specific performance. He agreed with her and her father that, if he was given the possession of this $1,000 which the father held for her, he would invest it in land, and that, to the extent her money paid for it, it should be her land, and, when sold, she should have a corresponding right to the proceeds. This was a commendable and lawful contract, with sufficient valuable consideration to uphold it. Having received the consideration on the terms named, he was morally and legally bound to convey to her the agreed interest in the land, or, in event of its sale, an equal interest in its proceeds. The proceeds of the sale included the lots in controversy, and, as the husband took to himself the cash and cash notes received for the land, leaving only the lots of no greater value than her interest in the original tract, he would have been compelled at her suit to have conveyed them to her. That he has voluntarily done what in good conscience and under the law he was bound to do can detract nothing from the act. In the case of Lyne v. Bank, 5 J. J. Marsh, 552, the court denied the wife's claim because it was not founded on an antenuptial contract, or an agreement made before the husband had reduced the wife's property to possession. In Latimer v. Glenn, 2 Bush, 535, it seems the husband reduced his wife's personalty to his possession without an express agreement to reimburse, but subsequently, when proposing to convey some of his land, in which she held potential dower, he agreed to make a settlement upon her equivalent to what he had received from her, if she would relinquish the dower; she having refused to do so until he made such an agreement. The court upheld that contract, and, the husband having conveyed to her, while in failing circumstances, a homestead...