187 Ky. 198 | Ky. Ct. App. | 1920
Opinion of the Court by
Affirming in part and reversing in part.
In. May, 1917, Karl "Wynne as principal and D. B. Leech, as Ms surety executed to the appellee, First National Bank of Princeton, a note for $500.00, due six months after date upon which Wynne secured a loan from the hank of that amount. Wynne is the son-in-law of Leech and of the appellant, Mrs. Fanny Leech, and the latter is the daughter of the appellant, J. B. Davis. The note mentioned became due in November, 1917, and Wynne being unable to pay it was permitted by the bank to renew it with Leech as surety to mature six months after date.
Leech and wife seem to have had marital troubles which ended in an agreement between them to live apart, which agreement was made some time in the fall of 1917. In the latter part of December, 1917, Leech removed to Detroit, Michigan, where he has since resided; but the day before his departure from Princeton he conveyed to his wife, the appellant, Fanny Leech, his residence and lot upon which it stands situated on a leading street of Princeton. At the same time she conveyed to him a smaller house and lot adjoining the home place which he had conveyed to her in 1895, both deeds were duly recorded in the office of the clerk of the Caldwell county court. It will be seen from what has been said that these conveyances were executed about a month after the renewal of the Wynne and Leech note and after the insolvency of Wynne had become well
The action was brought by the appellee, First National Bank,- in September, 1918. The petition alleged the insolvency both of Wynne and Leech and the non-residence of the latter; attacked as fraudulent the conveyances from Leech to his wife and father-in-law, and prayed that the deeds be set aside and both pieces of property thereby conveyed subjected to the bank’s debts; to which end an attachment was prayed, issued and caused to be levied on both lots. The appellants, Fanny Leech and J. B. Davis, by separate' answers traversed the averments of the petition, except as to the insolvency of Wynne and Leech. On the hearing the circuit court adjudged the deeds in question fraudulent, sustained the attachment and subjected the lots to the payment of appellee’s debts, but directed that the smaller lot conveyed Davis be first sold and then that the larger lot conveyed Mrs. Leech be sold, subject to her right of homestead therein of the value of $1,000.00, which should be paid her ouf of the proceeds of the sale of the lot before applying any part thereof on appellee’s debts. The appellants complain of the judgment, hence this appeal.
We think the evidence clearly establishes the fraudulent intent With which D. B. Leech made both the conveyances herein attacked. It is the claim of Mrs. Leach that the deed by which the larger lot was conveyed her by her
Without going into details respecting the evidence introduced in support of the attack upon the bona fides of the conveyance from D. B. Leech to the -appellant, Davis, it is sufficient to say that the confidential relations of the parties, the suspicious circumstances attending the alleged sale of the lot, the vagueness of Davis ’ statements as to when and how he claimed to have paid for the lot; his knowledge of the liability of his grantor upon the note to the bank and of his insolvency, together with his quasi concealment of the deed by which the- lot was conveyed him and the fact that he did not have it recorded until after the institution of this action, all served to show knowledge on his part of the fraudulent intent with which the conveyance was made and put upon him the burden of proving his ignorance of the fraud 'of his grantor, and that being true he is not entitled to be repaid what he claims to have paid his grantor for the lot. Caldwell v. Puckett, 186 Ky. 111; Perry; etc. v. Kirsh & Co., 157 Ky. 109. Pace’s Trustee v. Pace, &c., 162 Ky. 457.