110 Ky. 756 | Ky. Ct. App. | 1901
Lead Opinion
Opinion ob the court by
Abbieming.
At the December term, 1889, of the Knott Circuit Count,. J. C. Jones reeoveered a judgment against J. N. Pigman
After the sale of the house and lot, under the judgment by the sheriff, as the property of P. M. Duke,, he had the right, under section 4666 of the Kentucky .Statutes, to an assignment of the judgment, and such assignment would have given him the right to sue out an execution, or use the existing execution, or otherwise control the judgment to obtain satisfaction of Pigman for the whole amount so* paid by him, with interest, of from any co-security for his proper part of such payment; and if he had failed to-take an assignment of the judgment, under section 4665-of .the statutes, he could have recovered the amount so paid, with interest from the time of payment from Pigman, either by an action at law, or by information after ten days’ notice. He could also have sued his co-securities, and recovered their fair proportion of the debt so paid by him. While the conveyance from P. M. Duke to his son J. W. Duke was inoperative so far as antecedent debts, were concerned, it was not an absolutely void conveyance. On the contrary, it vested appellee with a good title as-against the grantor therein and all other persons except antecedent creditors; and he, by virtue of the conveyance,, was entitled to be subrogated to all the rights and remedies which accrued to his vendor by reason of the subjection of this property against Pigman, whose debt it was-sold to pay, and also the co-securities of his father upon* the official bond. The right of subrogation or of equitable assignment is not fouuded upon contract, nor
Dissenting Opinion
Dissenting opinion by
When the father conveyed the property to his son, he did so for the express purpose of preventing his creditors from seizing and selling it to pay their debts against him. The son knew this fact, paid nothing for the property, and the conveyance was-absolutely void. The son could have had no cause of action against his father on a warranty in the deed, because (1) he had paid nothing for the property; (2) he participated in the fraud, and a court should not give him any relief for that reason.- The property was sold to pay a debt for which the father was surety. If the son could not maintain an section against his father, by reason of the fact the property was lost to him, then certainly he should not -against the pai*ty for wham the father was surety. As the son could not maintain -an action against the father, because he was particeps_ crimims, he for the same ■reason should not be permitted to maintain one against his father’s debtor to compel him to pay for the value of the property, the title to which he obtained in a fraudulent transaction with the father; the property being sold to pay a debt, the collection of which was sought to be avoided by the transaction. The court held that the son took the property subject to the payment of the father’s debts. Assuming this to be true, then the following condition existed; It was sold to pay the father’s debt, and the result of the sale shows he acquired no interest in the property, as the entire proceeds were necessary to pay the-debts. At most, he got a shadow, — no substance. Noth