41 Ky. 86 | Ky. Ct. App. | 1841
delivered the Opinion of the Court.
Green Olay, who died- 'about the 1st of November, 1828, having, some'years antecedently to his death, verbally given to one of his daughters and her husband, William Rodes, the temporary possession and use of a tract of land containing about 400 acres, afterwards, by his will, since legally established, devised the tract to Cassius M. Clay, in trust for his said daughter and her infant children.
In December, 1828, after the probate of the will, the said Rodes, who was an acting executor thereof, finding that one Eslill held a covenant on the testator, dated in 1811, for a part of the land thus devised to the use of his wife and children, bought that equitable incumbrance for $800, and obtained a written transfer thereof to himself, and afterwards, in February of the year 1832, in settling his executorial accounts, Rodes obtained a credit for the said sum of $800, as so much money advanced out of the assets for quieting the title of the devisees, and at the same time, or previously, endorsed on Eslill’s transfer to himself, the fact that the payment had been made by him as executor, and'for securing a full effectuation, of his testator’s obligations and wishes. In May, 1837, he executed his individual note to Archibald W. Goodioe for $3926, and in September, 1839, confessed a judgment for that amount, with intermediate interest. To enforce that judgment, after a return of nulla bona, Goodioe filed a bill in chaticery for subjecting the said tract of land or some portion thereof, alleging that Rodes bad acquired from Estill and still held an equitable interest therein, so far at least as his bona fide creditors may be concerned.
That bill having been finally dismissed on the hearing, Goodioe has brought the case here for revision.
It seems to this Court that .the decree is right.
2. But the more confidential and responsible relations of husband and father, and co-occupant and usufructuary of the devised land,, imposed on him even stronger obligations to do nothing concerning the land for any other purpose than that of benefitting his testator’s beneficiaries, placed by law and providence under his control and guardian care. And had he, whilst thus occupying the land, acquired for his own exclusive benefit, any adverse title to the land, equity would stamp it Lrust.”
From these considerations, connected with his entire conduct-, we are inclined to the conclusion that Bodes bought Estill’s equity, in fact, for the purpose of effectuating the testator’s objects, and with the testator’s funds, even though it may not be improbable that he had no such funds when he advanced the $800, and may have borrowed those identical dollars in his individual name.
But whatever may have been his intention when he obtained to himself Estill’s'transfer, he surely had a right, and was under a moral' obligation at least, to hold or sur. render it to the uses of the will, with a lien only upon it for the sum he had paid for it. And it is very clear, therefore, that his subsequent recognition of that obligation, by endorsing on the transfer the trust for which it was obtained, and reimbursing the $800 by obtaining a credit therefor as executor, should not bo subjected to the imputation of constructive fraud on his creditors, had he
Considering the case as free from any implied trust, and in every respect in the light most favorable to Goodloe, it does seem to us that the endorsement in 1832, should be deemed sufficient evidence of a transfer of Es-till's equity to the beneficial devisees, aud for the consideration of $800 refunded to Rodes; and even in this aspect of the case, there is no ground for presuming a fraud on creditors, and especially on Goodloe, who does not appear to have become his creditor until more than five years after the date of that transaction.
In no aspect of the case thén, can we consider Estill’s equity as being in Rodes, for his own éxclusive use or for the benefit of Goodloe as his creditor; and under no circumstances that could be presumed to have occurred, should an equitable tribunal interpose in his behalf, to divest the devisees of an equity acquired for a valuable consideration, and fortified by so many trusts.
The decree is, therefore, affirmed.