67 P.2d 561 | Kan. | 1937
The opinion of the court was delivered by
This was an action in the nature of a creditor’s bill to set aside certain deeds from a husband to his wife alleged to have been executed in fraud of creditors, particularly the plaintiff. The trial court made findings of fact and rendered judgment for plaintiff. Defendants have appealed.
The court’s findings may be summarized as follows: On September 28, 1933, in an action then pending in the federal court, sitting in Sedgwick county, in which C. C. Achorn was plaintiff and O. F. Parker and one J. L. Russell were defendants, plaintiff recovered a personal judgment “against the defendants and each of them for the sum of $3,500,” with interest and costs. No part of this judg
The trial court’s conclusions of law may be summarized as follows: The judgment of the federal court, not having been filed for record in the district court of Edwards county, was not a lien upon the real estate of O. F. Parker in that county; it was not necessary for plaintiff to file his judgment of record in Edwards county before bringing his creditor’s suit; since the evidence discloses O. F. Parker was insolvent and had. no property subject to execution, plaintiff can maintain this creditor’s suit without having issued an execution on the judgment in the federal court; the judgment rendered in the federal court is a joint and several judgment against O. F. Parker and J. L. Russell, and it was not necessary for plaintiff to prove that an execution had been issued against J. L. Russell and returned unsatisfied, or that he was insolvent before bringing this action against O. F. Parker; there was no bona fide indebtedness existing between O. F. Parker and his wife at the time he executed the deed to her for his interest in his father’s estate, and this conveyance was made with an intent to hinder and delay and defraud- the creditors of O. F. Parker, and was received by Flossie C. Parker with notice and knowledge of this fraudulent intent on the part of O. F. Parker.
The trial court found 0. F. Parker was insolvent, and also found that he had 374 head of cattle at the time of the trial. Appellants argue that these findings are inconsistent, and that they also disclose plaintiff had an adequate remedy at law by the issue of execution and levy upon the cattle. The point is not well taken. While the evidence on this point is not as clear as it might have been, it fairly shows, and the only reasonable inference to be drawn from it is, that the cattle were purchased with the $10,000 borrowed from the
While some decisions support appellants’ view, most of those are in states where judgments are joint only and execution must be issued against all joint debtors, as Euclid Avenue National Bank v. Judkins, 66 Ark. 486, 51 S. W. 632; Richardson v. Crouch, 84 Ind. App. 234, 149 N. E. 733; Burne et al. v. Kunzman et al. (N. J. Eq.), 19 Atl. 667. That is not the rule in this state (Richardson v. Painter, 80 Kan. 574, 102 Pac. 1099; Winter v. Dunlap, 84 Kan. 519, 114
Appellants contend that Parker owed his wife for money he had borrowed from her, or which he had used from her inheritance. The trial court found this money was used in a common enterprise, that there was no agreement by which it was loaned from the wife to the husband, nor any agreement that it should be paid back, and hence that there was no bona fide indebtedness; that the wife had never asked for the repayment, and in fact that the deed made to her by O. F. Parker for his interest in his father’s estate was not given for the purpose of paying such an indebtedness. At best these are questions of fact. The trial court had ample evidence on which to make the findings on this point and they are controlling.
The result is, the judgment of the court below must be affirmed. It is so ordered.