181 Ky. 526 | Ky. Ct. App. | 1918
Opinion of the Court by
Reversing.
Jesse Moore and bis wife were the joint owners of a small lot and house in the city of Louisville, upon which they .resided. The wife died while she and her husband were residing in the house. Thereafter, in the month of
(1) The recovery of any sum by appellee was erroneous.
(3) The sale and conveyance was one which was not interdicted by either section 1906 or 1910 of Ky. Stats.
(4) It was error to adjudge, that the payment of appellant’s claim should be deferred, until after the payment of all other- claims against Moore.
(a) It is not insisted that the services for which appellee .recovered were not rendered, or that they were not of the value adjudged by the court, but that the services were gratuitous, and were rendered and received without any expectation of compensation upon the part of either Moore or appellee, and that they were embraced in the contract which Moore had with appellee and her husband. That the services were not embraced in the contract which appellee and her husband made with Moore for the rent of the house and to board him is apparent without further considera-. tion. The evidence does not support the contention that appellee knew Moore’s condition when she and her husband contracted to board him, or- that the services were within the contemplation of any of the parties, when making the contract touching the rental of the house. The petition alleges, that the services were rendered at the special instance $nd request of Moore, and upon his promise to pay therefor, and such constitutes an express contract, and the evidence seems to support the allegation and that appellee .rendered the services, in consideration of the promise to pay by Moore. The appellee and Moore were not in anywise related, and were living in the same house under a contract, the terms of which required each one to- pay the other for everything obtained from the other. Hence no presumption arises, that they were occupying the same house fox* their mutual convenience, and that personal services were rendered by appellee for Moore gratuitously. Hence the rule invoked, that the law does not raise a, promise to pay one for personal services rendered by such one for another member of the household, where their relationship and circumstances are such as to create the presumption that they are living in the same house for their mutual convenience, and before recovery
(b) That oxxe may sell or otherwise dispose of his homestead without the traxxsaction falling under the imputatioxx of havixxg been done in fraud of a creditor, or ixx preference of any creditor, there is no doubt. Tong v. Eifort, 80 Ky. 152; Roark v. Bach, 116 Ky, 460; Fuqua v. Ferrill, 80 Ky. 69; Baker v. Kinnaird, 94 Ky. 5. This doctrine, however, can not have applicatioxx to the facts of this case. Moore and .wife had occupied the house and lot as a homestead, and Moore was entitled to hold it as such. The death of his wife did not deprive him of his right of homestead already acquired. Stultz v. Sale, 92 Ky. 5; Suter v. Quarles, 22 R. 1080; Rothwell v. Rothwell, 31 R. 851. His voluntary abandonment of his homestead, however, destroyed his right to claim it as such, as against his creditors. His right to the property, as an exemption, as in every case of a claim of homestead, depended upon his actual purpose and ixxtention to use the property as a home for himself. When he left the property, some months before, he conveyed it to appellant and went to reside with her, in Anderson couxxty, he declared to his neighbors, that he never expected to return to, or to occupy the property as his home. It is insisted, that because
•(c) Moore did not own any other property, except his interest in the house and lot. He knew that he was insolvent, and when he had made a conveyance of his interest in the house, there was nothing left to satisfy his other creditors. To satisfy the statute there must be an intent on the part of the debtor to prefer the creditor, to the exclusion of other creditors, and the conveyance must be made in contemplation of insolvency, but, when an insolvent debtor conveys away all of his property in the payment of the debt the intent to prefer will be presumed. Grimes v. Grimes, etc., 86 Ky. 511; Thompson v. Heffner’s Extrs., 11 Bush 353; Hampton v. Morris, etc. 2 Met. 336.
(d) The evidence does not support the contention that the appellant, in accepting’ a • conveyance of the house and lot was fraudulently aiding or assisting Moore in defrauding his creditors. The conveyance on the part of Moore was one made in contemplation of insolvency, and with the design on his part to prefer the appellant, as a creditor. So far as the evidence discloses, the appellant in accepting the conveyance, did so, without any intention to fraudulently co-operate with Moore in defeating his creditors, but accepted the conveyance as a payment of his pre-existing indebtedness to her, and for her services, in the future. The only ground upon which the conveyance is vitiated, upon the part of appellant, is that it was an attempted preference of a creditor, made by Moore, and in contemplation of his insolvency. The statute, section 1910, Ky. Statutes,