84 Ky. 420 | Ky. Ct. App. | 1886
delivered the opinion of the court.
The appellants, in 1857, brought suit against Thomas L. Phillips, as administrator of Samuel Phillips, and
This court, at its September term, 1883, held that the statutory period of ten years’ limitation completely barred appellants’ right of action to subject said land
The appellants contend that “the provision of the Statute of Limitations, which prohibits an action to be brought for relief from a fraud after ten years from the perpetration of the fraud, does not prohibit the levy of an execution. To levy an execution is not to ‘ bring an action.’” They also contend that “the fact that the creditor has brought an action in equity, upon a return of no property, to subject said farm to the satisfaction of his debt, and that the court has dismissed said action because not brought within ten years, does not bar the right of the creditor to afterward levy an execution on said farm.”
Section 1 of article 1, chapter 44, of the General Statutes, provides, that “ every gift, conveyance * * *
The second section of the same article and chapter also provides that “ every gift, conveyance, * * * or transfer * * * by a debtor * * * of any of his estate, without valuablé consideration therefor, shall be void as to all of his then existing liabilities, but shall not, on that account alone, be void as to creditors whose debts or demands are thereafter created,” etc.
The first section of the statute supra relates to gifts and conveyances which are made with the design, in fact, to “delay, hinder or defraud creditors, purchasers or other persons,” and declares that such gifts or conveyances, etc., “as against such creditors, purchasers or other persons,” shall be “void.” The statute does not declare such gifts, conveyances, etc., void for any and all purposes, but only as against creditors, purchasers or other persons, who may be delayed, hindered or defrauded, are such gifts, conveyances, etc., declared void. As between the grantor and the grantee, such gifts or conveyances are valid. Also, such gifts or conveyances are valid as against all persons who do not come within the category mentioned in the section of the statute supra.
Also, the gifts or conveyances mentioned in the second section of the statute, not only as between the parties thereto, but as against all persons, except those named in the statute, are valid. As against the rights
Section 2 of article 3, chapter 71, of the General Statutes, provides that “an action for relief on the ground of fraud or mistake, * * * shall be commenced within five years next after the cause of action accrued.”
Section 6 of article 4, same chapter, provides, that “in actions for relief for fraud or mistake, * * * the cause of action shall not be deemed to have accrued until the discovery of the fraud or mistake; but no such action shall be brought ten years after the time of making the contract or the perpetration of the fraud.”
These two sections relate to the same character of fraud or mistake. They define each other. The second section provides that, for fraud or mistake, the action shall be commenced within five years next after the cause of action accrued.. The sixth section provides that the cause of action shall not be deemed to have accrued until the discovery of the fraud or mistake. Therefore, the action may be brought within five years from the time of the discovery of the fraud or mistake, and is not limited to five years from the time of the perpetration of the fraud or mistake. The sixth section, while thus defining section two, provides that no such action shall be brought ten years after the time of making the contract or the perpetration of the fraud.
This statute of ten years’ limitation runs, not from the time of the discovery of the fraud, nor from the time the right of action first accrued, but from the time of making the contract or the perpetration of the fraud.
The gifts and conveyances mentioned in section 1 of
As we have before said, as the gifts or conveyances mentioned in the two sections of the statute supra are valid, not only as between the parties, but as against all persons, except those mentioned in said sections, whose rights are affected by such gifts or conveyances, it follows that if such persons delay to bring their action to set aside such gifts or conveyances for ten years after they are made, then the statute bars the right to disturb them, in toto.
The right or title acquired by such gift or conveyance being perfect as against all persons, except those mentioned in the statute, the lapse of ten years from the time of such gift or conveyance, without action, closes out their right, and makes such gift or conveyance perfect as against them.
While the Legislature intended, by sections 1 and 2, chapter 44, of the General Statutes, that neither the fraudulent nor voluntary gift or conveyance therein named should affect the rights of any of the persons therein mentioned, it ..also intended by section 6, chapter 71, that after the lapse of ten years from the time of such gift or conveyance, without action, the fraud, whether actual or constructive, should be condoned, and the donee’s or vendee’s right should,
The Statutes of Limitations of this State bar not only the legal remedy, but the legal right also; whenever the legal remedy is destroyed, the legal right is also destroyed. “The very idea of a legal right is, that it is one which may be enforced by law. The legal right and the legal remedy are, therefore, correlative. The former implies the existence of the latter, and the latter implies the existence of the former. Neither can exist without the other.”
It is also well settled that the Statutes of Limitations of this State that bar the right to recover the possession of property, or to subject it to the payment of a debt, also perfect the title in the person of the claimant. (Stanley v. Earl, 5 Litt., 282; McCracken County v. Mercantile Trust Co., ante, p. 344.)
In the case before us, the appellees received a conveyance to the land in controversy in 1861. That the conveyance was either actually or constructively fraudulent-as against appellants, there can be no doubt. In either case, however, the Statute of Limitations provides that no action shall be brought to set aside the conveyance,, and subject the property to appellant’s debt on account of such fraud, after the lapse of ten years from the time-of such conveyance. If this statute means any thing, it means that the non-action of ten years on the part of the appellants validated and perfected the appellees’ right to said land under said conveyance, as against-them and all others similarly concerned in setting the conveyance aside, and who failed to take action within, the ten years.
It is true that the judgment plaintiff may have execution issued on his judgment at any time within fifteen years after the judgment was rendered, and cause it to be levied on any property belonging to the defendant at the time; but it is not true that the plaintiff can have property levied on and sold which the defendant had conveyed to another, though fraudulently, long-enough for the Statute of Limitations to bar the plaintiff’s right to subject the property, by action, to the satisfaction of his judgment. Suppose the defendant, after judgment was obtained against him, should fraudulently sell his horse to a third person, and that person should hold the possession of the horse for ten years before the execution was issued, would it be contended that the execution could be levied on the horse as the property of the defendant ? Or, suppose that a third person should wrongfully take the possession of the defendant’s horse after judgment had been rendered, and hold the horse as his own for five years before execution was issued, would it be contended that the horse could be levied on as the property of the defendant % Would the plaintiff in the execution be allowed to say: It is true that the horse has been held long enough to
For the foregoing reasons, the judgment of the lower court is affirmed.