129 S.W.2d 552 | Ky. Ct. App. | 1939
Reversing.
In 1935, A.J. Asher, the plaintiff below, executed a deed conveying to his son, W.L. Asher, the defendant below, a tract of land in Leslie County, and in 1937, he executed a second deed conveying other lands in that county to this same son. He brought this suit in equity against his son alleging these deeds were without consideration, and that simultaneously with the delivery of each, the son executed a writing to the father agreeing to reconvey the property upon his demand and the son has refused to reconvey the lands upon plaintiff's demand. The answer denied the deeds were not supported by consideration and further denied the execution of the written contracts by the son agreeing to reconvey the properties to the father. In effect, this is a suit to compel the son to specifically perform his contract and to reconvey the properties to his father. The chancellor adjudged the plaintiff to be entitled to the relief sought and the defendant appeals.
When depositions were taken it was brought out on the cross examination of the plaintiff that he executed the two deeds to the defendant in order to prevent the levying of an execution on the properties therein transferred, which execution had been issued upon a judgment his granddaughter bad obtained against him. The defendant takes the position in his brief that as the plaintiff executed the two deeds to perpetrate a fraud upon his creditor, equity will not come to his relief but will leave Min where it found him. The plaintiff's position is that his grand-daughter has decided not to enforce the collection of the judgment against him and that she was not defrauded by these conveyances, the defendant should be compelled to reconvey the properties. The plaintiff further contends that defendant did not affirmatively plead the conveyances were executed in fraud of creditors, therefore, no proof that the conveyances were fraudulent is competent in the absence of such an allegation in the answer.
Where specific performance is sought of a contract to reconvey property which has been transferred by a *804 fraudulent conveyance, 12 R. C. L. 612, Section 121, says:
"Fraudulent conveyances are sometimes accompanied by a specific agreement on the part of the grantee to reconvey, and the question arises whether the fraud will defeat an action for specific performance in such case. Though there is authority to the contrary, on the theory that the transaction is merely voidable at the option of those defrauded, and that the parties themselves will not be allowed to plead their own fraud, the decided weight of authority is that ordinarily a court of equity will not lend its aid to enforce the specific performance of a contract to reconvey property conveyed in fraud of the grantor's creditors, and the heirs of the fraudulent grantor stand in no better position in this respect than the grantor himself. If, however, the parties are not in pari delicto, such agreement to recover is often considered as creating a trust which will be enforced."
Specific performance is not a remedy which is granted as a matter of right, but lies within the sound discretion of the chancellor under the established principles and practices of equity jurisprudence. Relief in equity is conditioned on the transaction being free from fraud or illegal or inequitable conduct, as they will ever defeat the remedy of specific performance. Robenson v. Yann, 224 Kv. 561
In a long and unbroken line of cases this court has refused relief to one, who has created by his fraudulent acts the situation from which he asks to be extricated. We will cite only a few of these cases. Coleman v. Coleman,
It was written in Harper v. Harper,
Plaintiff argues it was incumbent upon defendant to plead the two deeds executed to defendant were fraudulent, and not having done so, no evidence was admissible to show these conveyances were fraudulent. It is true an affirmative defense must be pleaded and where defendant fails to do so, he cannot complain when a court refuses to admit evidence on such defense. Transylvania Casualty Insurance Company v. Paritz,
The judgment is reversed, with directions to the chancellor to dismiss the petition.