80 Ky. 600 | Ky. Ct. App. | 1883
delivered the opinion op the court.
The appellant, Jacob Martz, had paid as surety for the •appellee, H. Pfeifer, several hundred dollars, and instituted his action in equity in the Campbell circuit court, asking judgment for the amount, and also seeking to subject to •the payment of the indebtedness certain real estate that had been conveyed by the appellant to his wife (a co-appellant) Margaret, for no other consideration than that of love and affection. .
He alleged that the conveyance was made subsequent to the creation of the debt, and was fraudulent, &c.; further alleged that his claim was just — the amount he ought to recover; that the defendant, Henry Pfeifer, had no property in the state subject to execution, or not enough to satisfy plaintiff’s claim, and that the collection thereof would be -endangered by delay in obtaining judgment and a return of .no pt'operty found.. He asks for an attachment against the property of the defendant, Henry Pfeifer, and that the conveyance to his wife be held fraudulent, &c. There was no motion to transfer the case to the ordinary docket, and .the ■case proceeded in equity to a judgment in favor of the’appellant for his debt and interest; but the court refused to "hear any question as to the alleged fraud in the conveyance •made to the wife, and sustained a special demurrer to that 'branch of the case, for the reason, as counsel states, that before the chancellor could subject the property, there must ’be an execution upon his judgment with a return of no property found.
The framers of the Code of Practice now in force, as well as of the Code preceding it, seeing the necessity of giving to the creditor a more speedy remedy for subjecting the property of the debtor fraudulently conveyed, or about to-be fraudulently conveyed, provided a remedy by an attachment that can be obtained, issued, and levied upon the-property of the debtor that is about to be conveyed, or has been conveyed, with a fraudulent intent to cheat or hinder the creditor in the collection of his debt. In such a case, if the attachment has been discharged, the debtor, if he has-been subjected to expense and costs in the defense of the-attachment, may proceed upon the bond of the attaching-creditor, and have full indemnity for the wrong done him ;• and the third party whose property has been seized under the attachment, if not allowed to proceed on the bond, has;
The judgment is reversed, and cause remanded for further proceedings. (Haskell v. Winn; Napier v. Yager; Evans v. Ray, 3 Ky. Law Reporter.)