The Bank of Palmer v. Haley

• Decision Date: 09 February 1929
• Docket Number: 28,482
• Citation: 274 P. 265,127 Kan. 544
• Parties: THE BANK OF PALMER, Appellee, v. EDITH HALEY, Appellant (BEN F. ALBRIGHT and W. V. GRIFFITTS, Appellees and Cross Appellants)
• Court: Kansas Supreme Court

274 P. 265

127 Kan. 544

THE BANK OF PALMER, Appellee, v. EDITH HALEY, Appellant

(BEN F. ALBRIGHT and W. V. GRIFFITTS, Appellees and Cross Appellants)

No. 28,482

Supreme Court of Kansas

February 9, 1929

Decided January, 1929.

Appeal from Cloud district court; JOHN C. HOGIN, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

FRAUDULENT CONVEYANCES--Bulk-sales Act--Limitation of Action by Creditor. An action to enforce the right of creditors in a stock of goods sold by a debtor to another in bulk, without compliance with the bulk-sales act, is held to be based upon a liability created by statute, and is not barred by the statute of limitations if brought within three years after the cause of action accrues.

M. V B. Van De Mark, of Concordia, and D. M. McCarthy, of Mankato, for the appellant.

Park B. Pulsifer and Clyde L. Short, both of Concordia, for the appellee.

OPINION

JOHNSTON, C. J.:

This suit involves features of the bulk-sales law. On November 12, 1924, Ben F. Albright executed a note to the Palmer Bank for $ 2,800. Several payments had been made upon it which reduced it considerably. Albright owned a stock of goods at Palmer and also one at Clyde. He sold the Clyde stock in bulk to W. V. Griffitts April 1, 1925, for $ 2,645 without compliance with the bulk-sales law. Within two weeks the bank notified Griffitts that Albright owed the bank and that it was looking to the stock for payment of the debt. About four weeks later an officer of the bank went to the store and personally called the attention of Griffitts to the indebtedness. On June 19, 1925, Griffitts sold the stock to Edith Haley in bulk, in which there was no compliance with the bulk-sales law. The bank on June 27, 1925, sent a letter to Mrs. Haley stating that the bank had a debt owing to it by Albright and was looking to the stock for payment of it. Afterwards the bank tried to obtain payment of the debt from Albright, who had moved to another section of the state, and not being successful in collecting it from him the bank on June 30, 1927, brought this action against Albright for the balance due, $ 1,175.51 with interest thereon, made Albright, Griffitts and Haley parties, and it asked that the stock of goods in the possession of Haley be sold to satisfy the claim of the bank. A judgment was rendered against Albright for $ 1,267.61 on April 12, 1928, and it was further adjudged that if the obligation was not paid within ten days that an order of sale issue and sufficient of the stock and fixtures be sold to satisfy the judgment, and that if the sale was made or the judgment satisfied by Haley, that she might recover judgment against Griffitts and Albright, and further that Griffitts might have judgment against Albright for any sum paid by him. Albright made no defense, but the defendants, Griffitts and Haley, appeal from the judgment as against them.

It is contended that the action was barred by statutes of limitation as against Griffitts and Haley, since it was not brought within two years after the illegal sale was made of which plaintiff had actual knowledge. The action was brought more than two years and less than three years after the sale was made. It is argued that it was barred first, in that it was in its nature the recovery of a forfeiture or penalty which must be brought within one year under the fourth subdivision of the statute limiting the time of bringing action (R. S. 60-306); second, that if not within that provision it was one for relief on the ground...