12 Ky. 219 | Ky. Ct. App. | 1822
THIS is an appeal from a decree of the circuit court, dismissing a bill exhibited by the M’Ferransin equity against Jones and Crutcher.
In their bill, the M’Ferrans allege, that they have recovered a judgment at law against Jones, for 8464 with interest and posts, and that after causing an execution to issue thereon against the estate of said Jones,, they have been unable to coerce the payment of any part thereof, the said Jones having no visible estate, and being insolvent. They further charge, that they are informed that Crutcher is indebted to Jones in $ gum greater than their judgment, and call upon Jones and Crutcher, to say whether Crutcher is not so in
Jones, in his answer to the bill, admits tlie judgment in favor of the M’Ferrans. as stated in their bill, but alleges, that it was recovered against him and others for whom he became security, and not for hi¡f individual debt. He denies that his co-defendant, Crutch-er is, or was, at the exhibition of the bill against them, owing him any thing : but states, that finding himself greatly embarrassed in his circumstances, and being indebted on his own account to, various persons, a sum upwards of four thousand dollars, a large portion whereot his co defendant, Crutcher,had become liable, to pay as his security, and a part thereof was due, Crutcher on a contract with him, and feeling it to be his duty to pay his said creditors, and particularly to sayo said Crutcher harmless in his s< cwrityship as aforesaid, he did, on or about the 18th of March, 1820, fell to the said Crutcher, a large portion of his property, containing a tract of land, tan yard, and the appurtenances thereto belonging, at the price of about $4000; the debt due to said Crutcher, and that for which he was bound as security aforesaid, to be first deducted therefrom, and the balance to be paid to said Jones’ creditors, a list of whose names, and the amount due to each, he refers to, and makes an exhibit with his answer. He further states, that the contract with IJrutcher was honest and fair; made for the sole purpose of paying his just creditors, and that he has since seen the creditors whose debts Crutcher was to pay, and has procured their concurrence and agreement tc> accept Crutcher’s assumpsit for the payment of their demands, arid that Crutcher has assumed upon himself and become bound for the payment thereof.
In his answer, Crutcher denies any knowledge of the demand asserted by the M’Ferrans in their bill; states he is owing Jones nothing, alleges that he did purchase of Jones the property mentioned in said Jones5' answer, and sets out the terms of that purchase substantially as Jones has done in his answer. He moreover charges, that the purchase made by him was hen-.
Subsequent to these answers, the M’Ferrans amended their bill, in which they call upon Jones and Crutcher to state the substance pf the contract made between them in relation to the sale and purchase of the property alluded to by them in their answers, and to exhibit the agreement, if in writing, in relation, thereto ; and that the said Jones and Crutcher state when the agreement was made, and for what purpose, and whether it was made in good faith, or for the purpose of defeating the claims of creditors. They also call on Crutcher to set out the nature and extent of his undertakings to the creditors of Jones, &c.
3. Jones and Crutcher each answer the amended bill, and exhibit the written agreement which v as made by them, containing a statement of the debts, the amount of which was to be paid by Crutcher ^ but by that agreement, Crutcher has not expressly under. ■taken to pay each of those creditors of Jones, but he has undertaken to pay Jones the amount thereof. Each of their answers repeat what had been alleged in their answers to the original bill, as to the fairness of the contract made between them, and the natureand object ther.eof, and they set out, the nature of the assurances since made by Crutcher to the creditors of Jones, whose debts wore designed by the contract to he satisfied, &c.
It was upon this state of the pleadings, and without any deposition being taken on either side, that the decree of the circuit court was pronounced, dismissing the M’Ferrans? bills-
3. Itisobvicus, that in the consideration of this cause, all imputations of fraud in the contract between Jones and f rutcher, should be totally disregarded.
In truth, the original bill seems not to have been predicated on the idea of any fraud having been oom. mitted, and there being no evidence in the cause, the charge of fraud rests exclusively upon- the import of interrogatories put to the defendants in the amended bill; and by their answers to those interrogatories, the defendants have expressly denied that the contract was made between them for any fraudulent purpose» |t is true, at the time of making that contract, Jones apt only appears to have bpen greatly indebted, but a
And bere.it should be remarked, that this suit was not only commenced, but it was actually decided by the circuit c-ourt, before the passage of the act of session 1821.
It results that the decree of the court , below, was correct in dismissing the M’r erran-s’ bill, and consequently; that decree must be affirmed with costs.
1 B,'g 505.