145 Ky. 67 | Ky. Ct. App. | 1911
Opinion of the Court by
Affirming.
The Mt. Sterling National Bank had a debt against Henry S. Duff on which it obtained a judgment and had an execution issued and levied on 136 acres of land as his property. At the sheriff’s sale it bought the property for the debt, and the land not having been redeemed it obtained a sheriff’s deed therefor. It then entered a motion for a writ of possession for the land. In this proceeding the infant children of Henry S. Duff filed their petition which was taken as their answer, in wihch they alleged that their father had no title to the land, and that all the income arising from it was necessary for the purpose of raising, educating and maintaining the family. They filed with their petition a copy of the deed under which the land was held. The bank demurred to the answer; its demurrer was overruled and the court entered a judgment that Henry S. Duff had no interest in the land which could be sold or subjected to his debts. The proceeding of the bank having been dismissed, it appeals.
“This deed of conveyance made and entered into this 21st day of June, 1898, between S. A. Duff and his wife, 'Sallie A. Duff, of Montgomery County, Kentucky, parties of the first part, and Henry S. Duff and his legal heirs, of Montgomery County, Kentucky, parties of the second part, witnesseth:
“That the parties of the first part for and in consideration of the love and affection they hold and have for their son, Henry S. Duff, and for his children and the further consideration and understanding that Henry S. Duff receive the land hereinafter conveyed as his legal part of my estate, that he make no further claim against my estate at my death * * * do hereby sell and convey and transfer to the legal heirs of Henry S. Duff the following two tracts of land described as follows: Here follows description.)
“Said Henry S. Duff is to have full control of said land during his lifetime for the purpose of raising, educating and maintaining his family, but he is not permitted to sell or mortgage or in any way incumber or transfer his life interest in said land and at his death, should his wife, Lula Duff, survive him, she is to have for her use and benefit during her lifetime or until she marries again or changes her name from 'Lula Duff, equal shares with the heirs of Henry S. Duff in 'the land conveyed with the understanding that she is not permitted to sell, mortgage or transfer or incumber dn any way any interest she might have under the above clause of this deed.
The parties of the first part hereby covenant with the parties of the second part that they will warrant the title to the property hereby conveyed unto the second parties their heirs and assigns forever.
“In witness whereof the parties of the first part have hereunto subscribed their names the day and the year aforesaid.
“S. A. Duff,
“Sallie A. Duff.”
It will be observed that in the caption of the deed, Henry S. Duff and his legal heirs are named as the parties of the second part. But in the granting clause the property is conveyed to the legal heirs of Henry S. Duff; then after a description of the property, the deed sets out that Henry S. Duff is to have full control of the
Section 1691, Kentucky Statutes, which is a part of the statute regulating this proceeding, provides:
“If it appears in the proceedings aforesaid that the title of the defendant in the execution to the land sold was only equitable, or the land encumbered by mortgage or lien, the court shall, if the purchaser require it, subject the land to the payment of the debt of the execution creditor in the same manner it would do if there was a return of no property found, and may cause such pleadings to be filed and parties brought before the court as may be necessary to a final equitable judgment in respect to the rights of all parties interested.”
It is insisted that the court should not have dismissed the proceeding but should have subjected 'the defendant’s . equitable interest in the property. The bank filed no pleading showing that there was a surplus of income arising from the land over and above what was necessary for the raising, educating and maintaining of the family; and there being nothing to show this, the court properly held that upon the showing made, Henry Duff had no interest in the land which could be sold or subjected to his debts. If at any time-the income arising from the land is not all needed for the purpose of raising, educating and maintaining the family, the bank may by a proper proceeding in equity subject the surplus to its debt; for Henry S'. Duff is a member of the family, but he has no interest which may be subjected so long as all the income is needed for the raising, educating and maintaining of the wife and children, as it was the clear purpose of 'the grantors to provide first for them so long as the children are members of the family and the wife does not
The law allows a housekeeper with a family certain exemptions, but it makes all bis other property subject to his debts. Numerous efforts have been made to evade the statute and vest a beneficial interest in one to property; and yet so arrange it as to be free from the reach of Ms creditors. All these efforts must fail. The statute can not be evaded. The property of the debtor may be subjected to Ms debts, but only his property; when others are provided for, their rights must be respected. (Tally v. Ferguson, 17 L. R. A., N. S., 1216, and notes.)
Judgment affirmed.