Keiser v. Shaw

104 Ky. 119 | Ky. Ct. App. | 1898

JUDGE PAYNTER

delivered the opinion oe the court.

The evidence in this case authorized the court to refuse to set aside the deed which Mrs. Keiser made her son William Gates for land, and also the one which she made to Munch and wife. In consideration of the payment of certain sums by the grantees, and the further consideration that her son William pay her $100 per annum during her life, and that Munch and wife would pay her a like sum per annum during her life, the deeds were made.

It is insisted that the $200 which was to be paid annually by the grantees to Mrs. Keiser is not subject to attachment by her judgment creditors, because it is too uncertain and intangible; that it is a contingent liability. The amount which the vendees will ultimately have to, pay Mrs. Keiser is uncertain, because the time of her death can not be foretold. It is, however, certain that they are to pay $200 per annum, and that liability continues until her death, which is an event that is certain to happen. .The liability of the vendees can not be terminated at their will. They can not prevent its enforcement. Hence, their liability is fixed and certain. Their liability does not become fixed by a contingent event, but it is, however, to be terminated when a certain event happens. If the vendees had failed to pay the sums which they had severally contracted to pay Mrs. Keiser, the court could have, by appropriate proceedings, enforced them. The debt which the vendees owe Mrs. Keiser is no more intangible than any other chose in action. Counsel for appellants cites section 555, Drake, Attachm., to sustain his position. It is said by the author, in that section, “that, when it is contingent whether the garnishee will ever owe the defendant money, he can not be made liable.” We think this is a well-settled doctrine. In this case the parties are not to become indebted on the happening of any event, and they are indebted to the defendant, and their liability is to continue until the happening of an event. The court simply adjudged that -the garnishees, the vendees, pay the $200 annually into court, to be applied to the payment of the creditors’ debts, until they were paid, or until Mrs. Keiser’s death, if it should sooner happen. The appellees had obtained a return of nulla bona. The appellee Mrs. Holz did not only try to have the deed which Mrs. Keiser had made set aside, but she sought to subject to the payment of her judgment choses in action, equitable and legal interests, etc. The fact that she did not succeed in having the deed set aside did not deprive her of the right to other relief sought, fcnaw, in an amended petition, aslred that the deeds be canceled. If that could not be done, then he asked that the sums due by William Gates and Munch and wife to Mrs.' Keiser be subjected to the payment of his debt. The judgment is affirmed on original and cross appeals.