Walters v. Akers

• Decision Date: 14 May 1907
• Citation: 101 S.W. 1179
• Parties: WALTERS ET AL. v. AKERS ET AL.
• Court: Kentucky Court of Appeals

101 S.W. 1179

WALTERS ET AL. v. AKERS ET AL.

Court of Appeals of Kentucky.

May 14, 1907

Appeal from Circuit Court, Hardin County.

"Not to be officially reported."

Action by Lee Akers and another against J. L. Walters and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

Williams & Hanley and Greene & Van Winkle, for appellants.

L. A Faurest, for appellee Akers. Chas. H. Moorman, for appellee Merchants' National Bank.

CARROLL C.

In April, 1904, J. C. Vannort purchased from Crouch & Son several horses, including a stallion named Sancho, for $3,500, and executed three notes for the purchase price, with appellee Akers as surety. The notes were due in October 1905, October, 1906, and October, 1907. Soon after the purchase Akers agreed to take a one-half interest in the stock, but in August, 1905, sold his interest to Vannort, who executed a writing giving him a lien on the horses to protect him as surety on the notes. In September, 1905, Akers filed his petition in equity against Vannort, appellant J. L Walters, and others, setting up his suretyship on the notes to Crouch & Son, and alleging that Vannort had fraudulently conveyed to Walters a tract of land with the intent to cheat and delay his creditors; that Walters knew of his fraudulent purpose and accepted the conveyance to assist Vannort in cheating his creditors. He asked that the conveyance be set aside and the land subjected to the payment of the debts upon which he was surety, and for an attachment against his property. Vannort and Walters answered, denying any fraud in the purchase of the land, but admitted that Walters in September, 1905, had bought it for $8,500, $3,500 of which was paid in cash and the balance by the assumption of lien debts upon the farm. They also asserted claim to a homestead in the land for the benefit of Walters. Crouch & Son, as well as the Merchants' National Bank of Lafayette, Ind., purchasers of the notes, were made parties. Vannort in a pleading against Crouch & Son sought to have $2,000 of their indebtedness canceled, upon the ground that the stallion Sancho, for which he paid this sum, was impotent and did not fulfill the written guaranty given by Crouch & Son, who guarantied the stallion to be "a satisfactory, sure breeder, provided the said stallion keeps in as sound and healthy a condition as he now is, and has proper care and exercise. If the said stallion should fail to be a satisfactory sure breeder within the above treatment, we agreed to take the said stallion back and give the said J. C. Vannort another stallion of equal value in its place, provided the said stallion is returned to us at Lafayette, Ind., in as sound and healthy condition and in as good flesh as he is now by June 1, 1905." The case, being fully prepared for trial, was submitted, and judgment rendered adjudging that Vannort had conveyed and otherwise disposed of his property with the fraudulent intent to hinder and delay his creditors, and that Akers was surety for Vannort upon the notes executed to Crouch & Son, and had the right to maintain the action. It was also adjudged that Vannort pay to the Merchants' National Bank, assignee of Crouch & Son, the amount due on the note payable in October, 1905, and that on or before November 1, 1906, he pay the note due in 1906, and on or before November 1, 1907, he pay the note due in 1907. The attachment was sustained, and the land and a number of articles of personal property attached ordered to be sold. It was further adjudged that Akers had a lien on the attached property to indemnify him as surety on the Crouch & Son notes. Walters was allowed $1,000 out of the proceeds of the land as the homestead interest of Vannort therein, less $400, the value of corn growing on the land when the attachment obtained by Akers was levied, and which was converted by Walters to his own use. The petition of Vannort against Crouch & Son to recover damages for the breach of warranty was dismissed without prejudice.

A number of errors are assigned by appellants--the principal ones being, first, that although Akers may have been surety on the notes, which was denied, he could not maintain an action for indemnity or assail as fraudulent a conveyance before he suffered any loss or paid any part of the notes; second, that the evidence did not authorize the court finding that the conveyance from Vannort to Walters was fraudulent; third, that error was committed in not setting apart to Walters a homestead of the value of $1,000 in the land in place of allowing him $1,000 out of the proceeds and in charging him with $400, the value of the corn appropriated; fourth, in dismissing the petition of Vannort against Crouch & Son.

There is no doubt that, under section 237 of the Civil Code of Practice, a surety who is liable upon a contract my bring an equitable action against his principal before the debt or liability becomes due or matures, and in such action assail fraudulent conveyances. Bamberger v. Moayon, 91 Ky. 517, 16 S.W. 276; Marks v. Gauze, 72 S.W. 732, 24 Ky. Law Rep. 1949. Therefore Akers, as surety on the notes executed by Vannort to Crouch & Son, could maintain the action that he instituted against Vannort for indemnity and obtain therein an attachment against his property. There is some conflict in the evidence as to whether or not Akers was surety for Vannort, or a joint purchaser with him of the horses, but the weight of the evidence establishes that Vannort was the purchaser, and the principal in the notes; Akers being merely his surety.

In respect to the controversy between Vannort and Crouch & Son as to whether the hourse Sancho fulfilled the guaranty given, the evidence is not full or satisfactory, but, waiving this question of fact, as we do...