89 Ky. 625 | Ky. Ct. App. | 1890
delivered the opinion of the court.
June 21, 1887, E. L. Harper made an assignment for the benefit of his creditors. A few hours before doing so he directed the brother of the appellant, Hattie A. Matthews, to get John Otten to go to an officer of the Fidelity Loan Company, and get from him his (Harper’s) “pass-book,” evidencing his ownership of twenty shares of stock in the company, then worth from four to five thousand dollars, and draw the value;
It appears that the appellant received from her
The creditors are not parties to this appeal, nor are their pleadings made a part of the record before, us. In the consideration of the matters involved, we will
The evidence fails to show that the appellant’s debt was a fraudulent. one, nor is a state of circumstances shown from which we are authorized to presume it. This is also true as to her claim to the stock in the Loan Company, based upon the transfer in. Otten’s name. . No fraudulent purpose is shown even by inference. It was, however, undoubtedly intended as. a preference of the appellant as a creditor by Harper as a.debtor. Indeed,, this is. expressly admitted by her pleadings’. The parties: all resided in Ohio, and the entire transaction occurred there. Its validity is, therefore, to be tested by the law in force there. The deed of trust was also made there. At common law a debtor had a right to prefer a creditor either by a payment or an express preference in a deed of assignment. He has a right to pay his debt, and it is only by.virtue of statutory law that such a payment can be held invalid, and the creditor be compelled to surrender his advantage. In the absence of any-showing of the existence of such a statute in another State, it must be presumed that the common law is in force there. (Miles v. Collins, 1 Met., 308; Honore v. Hutchings, 8 Bush, 687.)
The appellee has, in his pleadings, set out a section of an Ohio statute, which reads thus: “All assignments in trust to a trustee or trustees, made in contemplation of insolvency, with the intent to prefer one or more creditors, shall inure to the equal benefit of all creditors in proportion to the amount of their
It is urged the second paragraph of the answer and reply of the trustee, in which it is averred, in. affirmative form, that the transfer was made at the-time Harper was contemplating an assignment, and that it was, therefore,, fraudulent, and so in fact, isundenied, and that it must, therefore, be so held. Its averments must, however, be regarded as statements negativing those of the cross-petition of the' appellant. It is therein averred that the transfer was-dona fide, and upon sufficient consideration, and these averments of the answer and reply of the appelleeare, in substance, but contradictory of them, although, couched in affirmative language. The transfer was, in fact, made; it was not fraudulent, nor as a preference was it forbidden by the lex loei, and it must-be upheld.
The judgment is reversed, with directions to render one for .appellant in conformity to this opinion.