151 Ky. 794 | Ky. Ct. App. | 1913
Opinion of the Court by
Affirming.
•The plaintiffs question the correctness of the chancellor ’is judgment only in so far as it affects, the home deeded by T. D. Pierce to his wife. The evidence for plaintiffs tends to establish their claims, and to show that T. D. Pierce was- insolvent at the time the transfer fo his ydfe was made, and that the transfer took place after the indebtedness to- them was incurred. The evidence for the defendants is to the effect that Mrs. Pierce inherited through her mother a tract of 105 acres in Obion County, Tennessee. The land was sold for about $2,100, and the -proceeds loaned to her husband. He always recognized the fact that he was a debtor of hi's wife. On February 19, 1894, and prior to the time that the obligations sued on were incurred, T. D. Pierce purchased from Francis Walker a tract of land consisting of about 152 acres, located in Obion County, Tennessee. The deed was executed- to Mrs. Pierce. The land was paid for with a portion of the money which T. D. Pierce held as debtor -of his wife. On December 26, 1901, T. D. Pierce -and his wife, M. A. Pierce, executed and delivered to- W. W. Morris, trustee, .a deed of trust covering a large body -of land, and including the 152 acre farm belonging to M. A. Pierce’s wife. The deed contains the following provision:
When the land including that belonging to Mrs. Pierce was sold under the deed of trust, the proceeds were insufficient to pay all the debt, interest and costs. After the execution of the mortgage, the deed in question to the home place was executed and delivered.
Plaintiffs earnestly insist that when Mrs. Pierce’s land was first sold, and the proceeds turned over to her husband, he used the property as he pleased in his business, and it being personal property, and he having thereby reduced it to possession, it became his, and was liable for his debts. Whether or no» this be true, it is not necessary to determine. The fact is he took the proceeds of his wife’s estate and invested it in land in her name, and even if that conveyance was fraudulent, it was not assailed on the ground of fraud in the terms required by the statute. That being true, the property thus conveyed to the' wife must be regarded as hers. Being her.s, and being subjected to her husband’s debt when sold under the deed of trust, her husband thereby became her debtor. Being her debtor in an amount equal to the home place which he deeded to his wife, the transaction by which the land was conveyed can be regarded in no other light than a preference. Being a preference, and not having been attacked within six months after the deed was legally lodged for record, as required by Section 1911, Kentucky Statutes, it follows that the tract so conveyed cannot be subjected to the payment of plaintiffs’ claim. Savings Bank v. McAlister, 83 Ky., 149.
Judgment affirmed.