42 Ky. 550 | Ky. Ct. App. | 1843
delivered tlie opinion of the Court. — Judge Beech did not sit in this case.
The propriety of the decree in this case depends upon the question whether the conveyance of 141 acres of land, (together with the growing crop and farming utensils, by Schuyler Ford, a debtor to the complainants and others,) to John J. Ford, his brother, should be deemed fraudulent and void as against the creditors of the grantor.
In this case, as in others of a similar character, the question as to the fraudulency of the transaction, is made to involve many subordinate questions as to each of which an issue is made in the pleadings or evidence, or both. These subordinate issues and the evidence bearing upon them, have been considered chiefly with a view to several
1. The possession seems to have been changed immediately after the deed. The grantee seems to have had the exclusive use and enjoyment ever since. And there is no ground for presuming any secret condition, trust or reservation of benefit to the grantor, if there was a real, fair and adequate consideration.
2. The deed expresses the consideration of $1400, paid and secured to be paid, which is proven to have been a fair price. It is proved by the draftsman of the deed to have been made up of the surrender by the grantee, of three notes on the grantor, amounting, with interest, to about $800, and by the execution by the grantee, of an instrument binding him to pay a debt of $260, due from the grantor to one Blythe, and of a note for the balance, (of about $340,) payable to the grantor. The subsequent payment of the $260 to Blythe, in a settlement of the price of work previously done for him by the grantee, is proved; and the note for $340 was, some time after the commencement of this suit, assigned to Wm. Teeter, and as may be inferred from his deposition, has been since satisfied by the maker, by payment or otherwise. It is proved by M. Q. Ashby that after this and other similar suits had been brought, S. Ford offered to assign this note to him, to put it out of the reach of his creditors; but although this evidence shows a fraudulent intention with regard to the use of the note, it does not tend to show that the note itself was not real, or that the payee did not intend that it should be paid.
With regard to the two last notes, and the debts evidenced by them, there is no direct testimony besides that, of Schuyler Ford, except that Caroline Ford speaks of a loan from J. J. to S. Ford, of $120, in the summer of 1839, which may have entered into the consideration of the note of October of that year. It appears, however, that during three years, ending with 1838, J. J. Ford had received, as a bricklayer, principally in the City of Lexington, and nearly all of it in money, about eight hundred dollars. Up to this time it does not appear that he had incurred any expenses except merely for living, and being a plain, industrious and economical young man, it ■might be -presumed that he had saved some five or six hundred dollars, principally in money in hand or on loan. His tax list for 1839, referring of course to the 10th of January, (including $300 reserved from taxation by law,) presents the sum of $495, as his own estimate of what he was worth, of which $145 was in horses, and the residue beyond S. Ford’s note for $220 was probably in ■money. About the period just mentioned he married, but did not keep house until about the end of the year ■1839. During that year he is proved to have built five ■houses, two of them at the price of $810, the payment ■of which is proved; and of the other three there is no separate estimate. But of three witnesses who worked with him on some or all of those jobs, one supposes their gross value to have been $1000; another estimates it a-t $1100 or $1200, and a third thinks he must have cleared, in 1839, from $>700 to $900. His family expenses for
The value of his horses, on hand at the beginning of the year 1840, seems, from his tax list, to have been about the same as at the commencement of the preceding year. Taking then $1100 as the gross value of his labor, on the five buildings erected by him in 1839, this sum added to $135, on hand at the beginning of the year, will give $1235 as the amount of his means to be accounted for. If the two notes now in question were genuine, an advance of about $505 to Schuyler Ford, would, at the rate of interest which seems to have prevailed between them, and which Schuyler Ford gave in another similar transaction, have been a sufficient foundation for them. In addition to which, J. J. Ford made a partial payment, say $200, for forty acres of land purchased by him in the winter of 1839, and in the summer of 1840 he received in payment of work done in 1839, the notes of S. Ford to Blythe, for $260, which he had bound himself to pay as a part of the consideration of the conveyance now in question, making $965 chargeable upon the fund of $1235, .besides the expenses of the year 1839. If the profits of the year were $900, this sum added to the $135 with which he commenced the year, would exceed the payments and loans chargeable upon it. If the profits were only $800 or even $700, the deficit of $30 on one hypothesis or $>130 on the other, considering the total means of the year, and the industry and thrift, and the consequent credit of J. J. Ford, would scarcely be sufficient to cast a doubt upon the reality of the alledged loans to Schuyler Ford, much less to disprove them. The expenses of the year were doubtless small; they may not all have been paid, or debts may have been incurred in paying them,, as J. J. Ford may, like other money lenders, have left his own debt unpaid, in order to furnish loans at high interest to a brother who seems to have needed it. His tax list for 1840 shows,' that according to his own estimate, his estate had increased! in value $655 during the year 1839, the total estimate for the 10th of January, 1840, being $1150:
It is then neither impossible noi improbable that he had the means of making the loans to Schuyler Ford, on which these notes of October, 1839, and February, 1840, are obliged to have been founded. On the contrary, it may be regarded as certain, that he had funds, about that period, considerably beyond any disbursements made for his own use, and which, if they were not invested in the shape of loans, are wholly unaccounted for. It may be assumed also, that at the periods referred to, Schuyler Ford needed money, and it is not to be doubted, that hav-. ing previously found his brother willing to lend, he obtained from him as much as he could furnish, and probably more than he could prudently spare. There is, it is true, no absolute proof nor demonstration that J. J. Ford had fully $500 to lend beyond all calls upon him for money : but when was such proof required to sustain an alledged loan? Neither is there any direct proof, besides the statement of the parties, that he actually lent that sum to Schuyler Ford: but there is reasonable certainty, that he was able to lend it, and there is no proof that he did any thing else with it. It may be also assumed, that in October, 1839, Schuyler Ford required money for the purchase and expenses of a drove of hogs, taken that fall to market; and there is great probability that he should have gone to J. J. Ford for a partial supply of his wants. The adventure wdth the hogs seerps to have been disastrous, and returning in the winter, without money enough to pay for his purchases of the previous fall, it is highly probable that he should again apply to J. J. Ford; and the payments made in February, may have been, in part, supplied by the alledged loan of the first of that
3. We come then to the question, whether this conveyance was made .with intent on the part of the grantor and grantee, to hinder and defraud the creditors of the former? Andupon the latter branch of this question, (as to the participation of the grantee,) what has been said with regard to the reality of the transfer, and of the consideration, has a most important bearing. For although a conveyance, founded upon a real and adequate consideration, and accompanied by an actual and unconditional transfer of the possession and enjoyment of the property conveyed may be void on account of the fraudulent intent of both parties to hinder and delay the creditors of the grantor, yet it would seem that this could scarcely be the case,, hnless it were the intent of both parties, or the obvious, or at least the probable effect of the transaction, to withdraw from the reach of creditors, not only the property conveyed, but also the consideration of the transfer.
Assuming, as we are authorized to do, that there was a real debt from Schuyler to J. J. Ford, as alledged; that the transfer of the property conveyed by the deed was
Schuyler Ford says, in his deposition, that J. J. Ford had wished to take a part of the tract of 141 acres in payment of his debt, but that he refused to let him have any
Another circumstance relied on as stamping this deed with the character of fraud is, that at the same time at which the deed now in question was written and executed, two other deeds were written by the same draftsman, and executed by Schuyler Ford, one of them a deed of mortgage for securing three debts, one of which only was truly stated, while a second was considerably exaggerated, and the third was almost entirely fictitious; and the other was a deed of'trust for securing several debts, all admitted to be just. The three deeds together, included nearly every article of property which he was known to possess. But surely the circumstances that these three deeds, to different individuals; were executed by the same grantor, •at the same time, even if it proves that they were all parts of the same scheme or system on the part of the grantor, does not make them all one transaction, as to the grantees, nor identify them so completely as to involve them all in the same fate. The deed of trust, we believe, has not been assailed. Even tjie mortgage has been properly sustained, so far as the debts therein named were real, though declared void as to the others. The real creditors did not concur in the fraud; and if this deed were to take its character and fate entirely from those of
Wherefore, the decree is reversed and the cause is remanded, with directions to dismiss the various bills and amended bills of the complainants in these three consolidated suits, so far as they seek to subject the land or personalty conveyed to J. J. Ford, by the deed of' Schuyler Ford, above referred to : but without prejudice to their remedy for attaching any debts which may be due by J. J. Ford to Schuyler Ford.