144 Ky. 343 | Ky. Ct. App. | 1911
Opinion op the Court by
— Affirming.
This action was instituted in the Fayette Circuit Cpurt by the appellee, Virginia H. Brand, upon a note executed to her by her former husband George C. Brand, from, whom she had been divorced, for about $5,000.00. The note was executed by the firm of Brand & Holzman, of which George C. Brand was a member.
It was averred in the petition that at the time of the execution of the note George C. Brand was the beneficial owner of certain personal property held for him by J. H. Shropshire, in trust, under the will of his deceased father, ¥m, M. Brand; also of an undivided interest in a house and lot in Lexington, Kentucky, and certain real estate in the city of Chicago, Illinois, likewise held in trust By Shropshire; and that he owned in his own right, free of the trust, certain lands in the State of Texas inherited from his deceased mother, Harriet M. Brand. The petition contained the further averment
George G. Brand, Ella Fletcher Brand, J. H. Shropshire and H. H. Herold were made parties defendant to the action and an attachment, procured by appellee on the ground of the non-residency of the Brands and H. H. Herold, was levied on the real and personal property in Kentucky held by Shropshire as trustee. It was also alleged in the petition that the conveyance to Herold was fraudulent as to the creditors of George 0. Brand, and asked in the prayer thereof that the same be so adjudged and set aside by the court; that the attachment be sustained and the property 'attached, or enough for the purpose, be sold in satisfaction of appellee’s debt. The defendants, Geo. C. Brand, Ella Fletcher Brand, and H. H. Herold, her trustee, entered their appearance to the action and filed a joint answer, which traversed the averments of the petition and affirmatively set up various matters in resistance of the collection of the note, including a plea of res judicata, based’ on a judgment of a New York Court in an action brought upon the note in that State, by which, without a trial on the merits, a recovery was defeated by an application of the New York Statute of Limitations.
The Payette Circuit Court sustained the plea of res judicata and dismissed appellee’s action,, but on appeal this court reversed the judgment manifesting that ruling; holding that, as under the decisions of the New York Court of Appeals, a judgment based solely on the statute of limitations is held to affect the remedy only, and not the cause of action, the judgment of the New York Court dismissing appellee’s action therein, did not bar a recovery on the note in Kentucky, where a different statute of limitations prevails. Brand, &c. v. Brand, &c., 116 Ky., 785.
Pending the appeal, or soon after its decision, Geo. C. Brand died and following the return of the case to the circuit court and the entering therein of the necessary order of revivor, judgment was rendered declaring fraudulent and setting aside the deed from Geo. C. Brand to H. H. Herold, trustee for Ella Fletcher Brand, in so
Appellee by reply denied the right of the appellant, Ella -Fletcher Brand, to dower in the Lexington real estate and alleged that she had received under the fraudulent conveyance from Geo. C. Brand to Herold, as her trustee, in other property, both real and personal, and proceeds realized from the sale of the Chicago real estate and a part of the lands in Texas, described in the deed from Geo. C. Brand to her trustee, Herold, an .amount largely in excess of the value of her dower in .the Kentucky real estate. The appellant, Ella Fletcher Brand, filed a rejoinder in which she denied receiving any proceeds from the sale of the Chicago real estate, but admitted she had received the proceeds realized from ,a sale of part of the Texas lands, amounting to $3,801.52, and did not deny that this sum exceeded the value of her dower in the Lexington real estate.'
The circuit court sustained a demurrer to the rejoinder, and the appellant refusing to plead further .judgment was rendered rejecting her claim to dower in ,the proceeds of the Lexington real estate and from that -judgment she has appealed. .
We have not been furnished by counsel on either side with any authority applicable, in our opinion, to the question here involved, nor have we found any in point, but in our view of the matter the circuit court’s decision of ' it was equitable and just to the parties.
It is argued by appellant’s counsel that as the judgment setting aside the deed from Geo. C. Brand to ap
The argument is plausible, but not convincing. While it is true the judgment of the circuit court did not set aside the deed in question as to the Illinois and Texas lands, it was because the lands in those states were territorially without or beyond its jurisdiction; it, however, declared the deed fraudulent as to the creditors of Geo. C. Brand, and that the appellant, Ella Fletcher Brand, had not paid anything for the Kentucky, Illinois or Texas lands; therefore, upon her admission that she had realized from a sale of a part of the Texas lands, an amount greater than the value of her dower in the Kentucky lands, it was but equitable that she should be required to account for it in adjusting her claim to dower in the Kentucky lands.
In other words as the Fayette Circuit Court had acquired jurisdiction of the person of appellant and of the property out of the proceeds of which she was claiming d'ower, it had the power to compel her to apply in satisfaction of her dower in the Kentucky property, the proceeds of other lands which had been conveyed her by her husband in fraud of his creditors, though situated in another State.
If, by suits hereafter instituted in those states, the deed should be set aside as to the lands in Illinois and Texas, there would still be enough left of those lands to satisfy the appellant, Ella Fletcher Brand’s dower interest therein.
’ We know of no rule of law or equity that forbade such a judgment as was rendered by the circuit court, therefore, it should be and is affirmed.
