136 Ky. 797 | Ky. Ct. App. | 1910
Opinion op tiib Court by
— Affirming.
The appellant, James I. Morton, was -surety on a note for $695.25, executed by J. W. Jones to the Eordsville Banking Company. Appellant paid the note. In June, 1903, appellee J. W. Jones was adjudged a bankrupt. Among the debts barred by the . bankruptcy proceeding was that owing to appellant. Appellant thereafter instituted an action in the Ohio circuit court against J. W. Jones to recover the amount he paid to the bank. This action was based upon a new promise made after the bankruptcy proceeding. In that action the appellant obtained a .ludgm'ent on October 18, 1906. On May 30, 1907, appellant had issued from the clerk’s office of the Ohio circuit court an execution on the judgment. This execution was placed in the hands of the sheriff of
In this action a general order of attachment was ■ prayed, but no particular property owned by J. W. J ones was described or mentioned in the. petition. To this action J. T-. Jones was made a party, and the charge made that he was indebted to his codefendant, J. IV. Jones. The summons on this petition was served on appellees, J. IV. Jones and J. T. Jones, on September 24, 1907. On September 11, 1907, J. W. Jones executed and delivered to J. T. and C. TV. Jones a mortgage on about 12,000 pounds of tobacco raised and grown by J. IV. Jones. This mortgage was given to secure the payment of $600, for which sum J. IV. Jones executed his note. In the proceedings wherein appellee J. IV. Jones was adjudged a bankrupt certain personal property was turned over to him as being exempt. At the time he owned a farm consisting of about 240 acres. Disinterested appraisers were appointed by the federal court, and they appraised his farm at $900. By orders duly entered it was allotted to J. IV. Jones as a homestead.
In the year 1906 J. TV. Jones conveyed the aforesaid farm to his wife, Emma Jones, for the recited consideration of $300 cash and love and affection. On November 23, 1907, appellant filed an amended petition in the Ohio circuit court, wherein he charged that the conveyance from J. TV. Jones to his wife, Emma Jones, was fraudulent and was made for the purpose of hindering and defeating appellant in the
The first question to be determined is whether or not the conveyance by appellee J. W. Jones of Ms homestead to his wife, Emma Jones, was in fraud of
That being the case, the decision of the court is final and conclusive, and cannot be disturbed except for fraud or mistake. In this case no fraud or mistake is shown. Furthermore, the rule is well settled in this state that the fixed right to occupy a homestead shall not be made to depend on the fluctuations of the real estate market; in other words, where Ihe right of occupancy has once been fixed, no advance in the value of the premises, due to the ordinary appreciation in the value of real estate, will give the creditor the right to subject the excess over $1,000 to the payment of his debt. Gowdy’s Admr. v. Johnson, 104 Ky. 648, 47 S. W. 624, 44 L. R. A. 400. As the property in question was exempt as a homestead, and could not, therefore, be reached- by the occupant’s creditors, it necessarily follows that the conveyance by him to his wife was not fraudulent as to them. A creditor cannot complain that his debt- or conveys away property that is not subject -to the creditor’s debts. Roark v. Bach, 116 Ky. 457, 76 S. W. 340, 25 Ky. Law Rep. -699.
Furthermore, it is well settled that a mortgage for a specific sum given in good faith as security for future advancements is valid as against the general creditors of the mortgagor for advancements not exceeding the sum specified in the mortgage, and parol evidence is admissible to show that it was given to secure future advancements and their ■ amounts. Louisville Banking Co. v. Leonard, 90 Ky. 106, 13 S. W. 521, 11 Ky. Law Rep. 917. As no fraud or collusion was shown on the part of J. W. Jones and his
Upon the question of lis pendens, this court has laid down the following rule: To obtain the benefits of lis pendens, the party asserting it must have not only a suit in which a relief in rem is sought against specific property sufficiently identified by the record, to which the other claimant or title holder must be a party in fact, but he must prosecute his suit with reasonable diligence. Kelley v. Culver’s Admr., 116 Ky. 241, 75 S. W. 272, 25 Ky. Law Rep. 443. In the action in the Ohio Circuit Court, which was filed September 5, 1907, there was no attempt to describe in the petition any property which appellant sought to subject. The petition in that case therefore, was not sufficient to create a lis pendens. True, appellant, by amended petition filed November 23, 1907, did describe the crop of tobacco on which J. T. and C. "VU Jones had a mortgage. Perhaps, if the mortgage had been executed after this date, appellees J. T. and C. YU Jones would have been lis pendens purchasers. But it is well settled that a new lis pendens, created by an amended petition, will not relate back to the commencement of the action so as to affect intervening rights. Jones v. Lusk, 2 Metc. 357; ITawes, &c., v. Orr, &c., 10 Bush 431. Of course, the mere knowledge on the part of appellees J. T. and C. W. Jones
Judgment affirmed.