112 Ky. 293 | Ky. Ct. App. | 1901
Opinion of ti-ie court by
Reversing.
On the 25tk of September, 1890, James Davis executed a mortgage to the firm of Walker & Sengstak upon a tract of 431. acres of land owned by him in Mason county, Ky., and on certain tobacco in the warehouse in Cincinnati, Ohio, to secure an indebtedness to them of $16,000. This mortgage contained no reservation of homestead, but, in terms, conveyed all the right, title, and interest of Davis therein. On the 1st of October following* the execution of the mortgage, Davis made a general assignment of all his property to Thomas Wells for the benefit of his creditors. The mortgage to Walker & Sengstak was attacked within six months by H. Feltman & Co., large creditors of Davis, as preferential; and at the December term,
The first question to be determined is whether the appellant, Davis, was entitled to a homestead at the date of the mortgage to Walker, Sengstak & Co., on the 25th of September, 1890. It appears from the deposition of Mary Davis that the appellant, James Davis, had lived'on the land for more than 40 years; that during his occupancy thereo-f he had married, and had two children; that his wife had died, and that his children' had grown up, married, and moved away from the old homestead, but that she had continued to live with her brother during this time, and was so living with him at the date of the execution of the mort
The next question to be determined is the effect of the execution of the mortgage to Walker & Sengstak upon his entire tract of land,’ without any reservation, and the subsequent judgment of the court holding this conveyance an act of bankruptcy under the statute of 1856. It was held in Kuevan v. Specker, 11 Bush, 1, that the homestead exemption was not lost by a fraudulent conveyance to a third party, which was set aside at the instance of creditors, the court saying: “A fraudulent conveyance does not enlarge the rights of creditors, but merely leaves them to enforce their rights as if no conveyance had been made, and they will not be allowed to attack the conveyance as fraudulent, and then deny that he was the owner, in order to defeat his right to exemption.” This was followed by the case of Gideon v. Struve, 78 Ky., 134. In this case Struve and wife conveyed two acres of ground on which they resided. Certain creditors of Struve obtained a judgment for the sale of the lot under the act of 1856, upon the ground that the conveyance operated as a transfer of all of their property to their creditors. Struve filed a petition for homestead out of the lot, and it was held that their conveyance passed their title for the benefit of their creditors, and that they were-not entitled to a homestea'd in the land conveyed. The conclusions reached by the court in this case appear to be in direct conflict with the previous case of Kuevan v. Specker. In the case of Calloway v. Calloway, 19 R., 870; 39 S. W., 241, this question was again considered by this court,
The claim of Walker & Sengstak to the proceeds of the homestead presents a more serious question. In the opinion in the Calloway v. Galloway case, Judge Paynter says: “It must be understood that we are not considering the rights of the mortgagee, vendee, or transferee in the exempt property of the debtor, which is embraced in the deed, mortgage, or transfer which operated as an assignment, but only the question of the rights of the debtor to the exempt property as against creditors other than the one to whom he may have deeded, mortgaged, or trans ferred his exempt property.” The case of Allen v. Dillingham’s Assignee (20 R., 980), 47 S. W., 1076, presented this state of fact: The Curd & Sinton Manufacturing Company, a private corporation of which W. H. Dillingham was the president and principal stockholder, was largely indebted to the Allens; and, to secure the payment of this indebted
The remaining question to be considered upon the appeal is the claim of the H. Feltman Company to an allowance out of the proceeds of the land as a fee to their attorney for services rendered in the proceedings instituted by them to have the mortgage of Davis to Walker Sengstak set aside as preferential. Section 489 of the Kentucky Statutes provides that: “In an action for the settlement .of estates or for the recovery of money or property' held in joint tenancy, coparcenary or as tenants in common if it
Opinion modified on its face, and petitions for rehearing overruled.