63 Ky. 423 | Ky. Ct. App. | 1866
delivered the opinion op the court:
On the first day of the March term, 1861, of the Madison circuit court, Albert Stagner — who was then indebted greatly
This appeal seeks a reversal of the decree dismissing all the petitions.
The aim of the act of 1856 was to secure, as far as it could, equality among the creditors of an insolvent debtor, by invalidating any act whereby he might attempt to transfer to one or more of them, to the exclusion of the others, property, or any lien on it, giving priority or other inevitable advantage. Such priority or advantage might result from a sale or a mortgage or an assignment, and, therefore, all these modes of preference are interdicted. But. any other mode chosen with the same object, and operating to the same end, whatever may be its form, should be considered an assignment, as it must be essentially; otherwise, the letter may kill the spirit, and a statute, which should be liberally construed, may easily be evaded and made a dead letter.
And our construction of the transaction and of the preexisting law is fortified, rather than weakened, by the statute of March the 2d, 1862 (Myers’ Supp't, 239), which provides: “That every judgment which shall be suffered by any defendant, or any act or device which shall be done or resorted to by debtors in contemplation of insolvency, and with the design to prefer one or more creditors to the exclusion, in whole or in part, of others, shall operate in the same manner and to the same effect, so far as other creditors of said debtors are concerned, as sales, mortgages, and assignments, made in like contemplation and with like design, are made to operate by the act (1856) to which this is an amendment.”
This enactment, by making the mere suffering of a judgment constructively fraudulent, clearly recognizes the principle of our decision in this case, and necessarily implies that the giving of an execution lien in addition to confessing a judgment, was embraced by the original statute itself, which, in that respect, needed no amendment.
And our conclusion is also aided, and made consistent with the general legislative policy and intent, by the 1st section of the statute against fraudulent conveyances, &c. (1 vol. Stanton, p. 545), which avoids every fraudulent “ charge upon any estate.”
Wherefore, the judgment dismissing the petitions, and all consequential orders and judgments, are reversed and set aside, and the cause remanded for further proceedings.