1 Ky. Op. 230 | Ky. Ct. App. | 1866
delivered the opinion of the court:
This petition in equity was filed by the executors of J. B. Quigley against J. R. Alexander, trustee, and his cestui que trust, Mrs. Mary Lancashire, holding certain lands and effects conveyed to them by Wm. Lancashire in his lifetime, and against J. D. and M. C. Hendricks, and G. C. Cook, alleged to be indebted to said Alexander for one of the tracts of land conveyed to him in trust, and which he had sold as trustee. The petition states in substance that Wm. Lancashire had sold to J. B. Quigley a negro woman, Emily, with warranty; that said Quigley had brought a suit at law against said Lancashire on said warranty, and that both of these parties having afterwards departed this life, the plaintiff's, in October, 1863, obtained a judgment against G. W. Ratcliff, administrator of said Lancashire, for $829, and that an execution had issued thereon, and was returned nulla bona; a copy of which, they say, “will be filed as a part hereof’ marked (A).” A copy of the execution, with the return stated, was accordingly filed. But neither the record of the action at law, nor even the judgment, is exhibited or referred, to as part of the petition; nor was a copy of either filed as a part of the plaintiffs’ case.
It may be assumed that the judgment against the administrator was rendered in the action which J. B. Quigley had brought against Wm. Lancashire, and on the same warranty; but if this be assumed, there is no statement of the nature or
The plaintiffs charge that the conveyance was in fraud of their rights and of their claim, which they say was in existence at its date and unsatisfied, and alleging that their only means -of obtaining satisfaction thereof is by subjecting the property included in or derived from said conveyance, they pray that it may be set aside, stating the sale of one of the' tracts of land by the trustee, Alexander. They pray that the debtor therefor be enjoined from making payment until the further order of the court. They also ask that the trustee and cestui que trust may account for the property, real and personal, and its proceeds, held under the conveyance from Lancashire, and that they be enjoined from disposing thereof until the further order of the court.
Process on this petition was served on J. R. Alexander and Mrs. Lancashire on the 4th of July, 1864. . At the first succeeding term in October, 1864, these defendants failing to appear or answer, and the process not having been served on all of the other defendants, and the administrator not being even a party, a formal order was made, taking for confessed the allegations of the petition against said J. R. Alexander and Mary Lancashire. At the next term, 1865, these defendants moved the court to set aside the order of confession and permit them to file an answer, which was presented for the purpose. Their motion having been overruled, they excepted;
The order taking the petition for confessed, if a distinct order of that kind be allowable before the submission of the case for trial, or before the term at which it is to be tried, ought not to be made before the process is served on all of the defendants concerned in interest with those against whom the confession is taken. At any rate, the order being, as an order distinct from the submission and judgment, merely interlocutory, should not, and does not prevent the filing of a meritorious and sufficient answer at any time before the submission of the case for decision — and especially when the delay has not been extraordinary, and is so accounted for as to show that it is not to be attributed to willful negligence, or to a disposition to frustrate or needlessly to postpone the attainment of justice.
The appellants state in their proffered answer, that, owing to the disturbed state of that section of the country at the time, and the general alarm which made many or most persons and themselves fearful of leaving their homes, there was irregularity and uncertainty in the holding of the courts, and it was the understanding, and by them honestly believed, that there would be no court in the county in October, 1864. If excuse were necessary, we think, that although this statement may not conclusively show that the appellants could not, at some hazard, and by the utmost diligence, have ascertained that there was a session of the court in October, it is sufficient; and at any rate, when connected with other facts shown by their answer. By their answer and its exhibit they show
By rejecting the answer and rendering the judgment appealed from conclusive, effect has been given to the judgment against the administrator rendered under the circumstances stated, as proving against the appellants, who were neither parties nor privies to it, nor in any manner represented in the action, facts which they have persistently denied and sought an opportunity of disproving, and by the assumption of which they are deprived (without that opportunity) of property which they hold by title indefeasible, unless on the ground of fraud or statutory denunciation, and which is good against all-the world, except creditors and purchasers who may have been injured by the grant to them.
We are clearly of opinion that the court erred in refusing to set aside the order of confession, and to permit the appellants to file the answer which was presented by them, and
If, therefore, the judgment be conclusive evidence of the demand of the plaintiffs in this case, the rejection of the answer, if it could be deemed erroneous, would not have
But even if the judgment against the administrator be prima facie evidence against the alienee that the intestate grantor of the void deed was liable to plaintiffs to the extent ascertained by the judgment, and of the facts on which it was founded, still, as in that case, the grantee of the void deed would have a right to controvert those facts. It would follow that, under the principles of pleading established for the attainment of justice, and .essential to that object, the facts on which the judgment is founded, and which constitute the basis of the claim itself, should, unless shown in the judgment, be stated in the pleading by which the plaintiff in the judgment seeks to enforce his claim against the holder of the property under the void deed, who is a stranger to the judgment.
A judgment against pne person cannot be enforced against another who is neither party nor privy to it, and who is not represented, either as to his person or his property, by any party to the action. It is the claim of the creditor and the liability of the debtor, and not the judgment against the administrator, that may be enforced against the fraudulent grantee of the debtor. And if the judgment be prima facie evidence of a rightful claim, it is but evidence of the fact or facts which constitute the claim. The pleading should state the facts themselves; and a mere statement of that which, at most, is but prima facie evidence of facts not expressed in that evidence, nor to be, with reasonable certainty, implied from
In the cases of Nourse’s executors, &c., vs. Ramsay, &c. (2 Bibb, 547), Ewing’s heirs vs. Handley (4 Litt., 355), Richards’ administrator vs. Porter’s heirs (6 Mon., 1), Hare’s heirs vs. Bryant’s administrator (7 J. J. Marsh., 376), and Litsey vs. Smith’s administrator (10 B. Mon., 75-6), the question as ta the effect which should be given, in a contest with heirs, to a judgment for money against the executor or administrator, has been, more or less, distinctly considered or stated. In none of them has it been regarded as more than prima facie evidence, though in some of them the heir claimed as donee or grantee of his ancestor.
In the case of Bedell’s administrator vs. Keithley .(5 Mon., 598), the court held, that after an ineffectual attempt to coerce his debt, by judgment against the administrator alone, the creditor could not resort to the heirs. This doctrine was modified or departed from in the case of Buford vs. Pawling’s executors. (5 Dana). And in the case of Litsey vs. Smith’s administrator (supra), the court place the action against the heirs, after an ineffectual judgment against the administrator, as authorized by the act of 1819 (1 sí Stat. Law, 780), on the same footing precisely as if it had been brought, in the first instance, against the administrator and heirs, or against the heirs alone, when such action was proper.
In the case of Ralls vs. Graham (4 Mon.), recognized in Warren vs. Hall (6 Dana), and in other cases, a distinct remedy is indicated, by which the creditor of a deceased debtor is to reach the debtor’s property in the hands of a person to whom he had fraudulently transferred it. That remedy seems to require the establishment of .the debt by original evidence against the party holding the property, and -to be independent of any proceeding against the personal representative of the debtor, unless so far as may be necessary to show that there has been-an ineffectual effort, made in good faith, to coerce the debt from him.
An amendment of the petition in this case, stating the facts which constituted the breach of warranty on which the claim
The voidness of a deed, fraudulent as to creditors of the grantor, cannot be made available to- a creditor unless, nor until, he establishes the justice and extent of his demand. This is conclusively done by a judgment against the debtor himself. And as his fraudulent conveyance is void as to his creditors, the property- conveyed is still his, so far as the creditor and his debt are concerned, and may be subjected to the judgment as his property, even by execution against him. In such case he represents the property which, as to that debt and judgment, is his, and he might, perhaps, be regarded as representing, in some sort, his fraudulent grantee, there being some privity between them. The grantee, though he may contest the fraud in the conveyance, and may impeach the judgment itself as having been obtained by fraud and collusion, is otherwise bound by it.
But the deed, though void as to creditors, being valid as to the representatives, real and personal, of the grantor, the property, whether real or personal, never was and never could be theirs in that character. There is no privity between them and the grantee of the decedent, and they neither represent the property granted, nor the person who has received it under the fraudulent deed. On what principle, then, of justice or'reason, can a judgment against an administrator be
Wherefore, the judgment is reversed, and the cause remanded, with directions to set aside the order taking the petition for confessed against the appellants, and to permit them to file their answer heretofore offered; and, also, to permit the plaintiffs, to amend their petition by making the administrator, Ratcliff, a defendant, and setting forth a cause of action for the alleged breach of warranty; and for further proceedings in conformity with this opinion.