173 Ky. 739 | Ky. Ct. App. | 1917
Opinion op the Court by
Reversing.
In the year 1907, Janies Ayers, who was the marshal of the town of Jellieo, shot and killed Sampson Bolton. Martha Bolton, the widow and administratrix of Sampson Bolton, brought suit against Ayers and his bondsmen, B. M. Rose and R..M. Perkins, to recover-damages for Bolton’s death. On January 27th, 1909, judgment was rendered in favor of plaintiff for $3,000.00 against Ayers and his sureties, Rose and Perkins. Execution was issued on the judgment and returned “no property found.” Thereupon plaintiff brought this action of
Later on, an amended petition was filed, charging that R. M. Perkins had fraudulently conveyed to his wife, Cynthia Perkins, three tracts of land, two of which were known as the “Jesse Walden tracts” and the other as the “Cal Perkins tract.” Cynthia Perkins set up claim to the tracts in controversy, on the ground that they were purchased with money inherited by her from her father and that the title was taken to her and her husband jointly when it should have been taken to her, and that her husband held the land in trust for her and for the purpose of carrying out the trust conveyed the land to her. Cynthia Perkins further asked that, if the deed from her husband to her be adjudged invalid, she be adjudged a homestead in her husband’s interest in said land.
On final hearing, the chancellor adjudged that the sale of the 68-acre tract of land from Rose to Rickett was fraudulent and void. He further held that the 50-acre tract inherited by Rose from his father under his father’s will was sold pursuant to a judgment which Rose suffered while he was insolvent, and for the fraudulent purpose of delaying plaintiff in the collection of her debt. The chancellor further adjudged that William Rickett and his wife, Vina Rickett, paid $1,200.00, in good faith, for the 68-acre tract and adjudged them a first and prior lien on said tract to secure the payment of said sum. He further held that the purchaser in the case of Jellico Grocery Company against B. M. Rose and* William Bird, in which action the 50-acre tract was sold, was entitled to a prior claim on the 50-acre tract for the amount of the purchase price, together with interest thereon from the date of payment.
With respect to the defendants, R. M. Perkins and Cynthia Perldns, the court held that the money with which the “Cal Perkins tract” of 50 acres and the two “Jesse.Walden tracts” containing 125 acres was purchased, was furnished by and belonged to Cynthia Perkins ; that Cynthia was the owner of the ‘ ‘ Cal Perkins tract,” but inasmuch as she suffered and permitted the title to the two Walden tracts to be taken to herself and husband jointly, and R. M. Perkins incurred numerous debts on the faith of such ownership, she was estopped to assert that she was the sole owner of the Walden tracts and that the deed from her husband to her was fraudulent and void. The court further adjudged Cynthia Perkins a homestead in the Cal Perkins tract and directed that her interest in the two Jesse Walden tracts should be laid off and apportioned in such a way that same should adjoin the Cal Perkins tract. It was further ordered that Cynthia Perkins should have no homestead in her husband’s interest in the two Jesse Walden tracts. From this judgment William Rickett, B. M. Rose and Cynthia Perkins appeal. While the plaintiff was granted an appeal below, she has neither prosecuted an original or cross-appeal.
The record fails to show that an attachment or execution was ever levied on the 50-acre Rose tract, or on the 21-acre tract conveyed to J. D. Bryant and wife. Neither of these tracts is described or referred to in the original or amended petitions. Nowhere was it sought to have the conveyances set, aside. Under the circumstances, it was error to set aside the conveyances and to award plaintiff a lien on the tracts. Clearly defendant was entitled to some notice that such action would be taken. If he had been apprised of the fact that the conveyance of the 50-acre tract would be cancelled and that tract subjected to plaintiff’s debt, he might have pleaded a homestead in that tract. .On the return of the case, the judgment as to the 50-acre tract and 21-acre Bryant tract will he set aside.
The deed to the two Jesse Walden tracts was executed about the year 1885 to R. M. Perkins and wife, Cynthia. About the time the original judgment in this action was to be rendered, R. M. Perkins conveyed Ms interest in the two tracts to his wife. It is now insisted that because the original purchase money came through Cynthia’s-father and was paid by her, she had an equity in the Walden tracts superior to that of her husband’s creditors, and the deed from her husband to her was not fraudulent. In the recent case of Morgan, Sr., et al. v. Lewis, 172 Ky. 813, 189 S. W. 1118, land which was paid for with property inherited by the wife from her father was deeded to the husband in 1871. The title thus remained until a judgment was obtained against
Before the judgment of sale, Cynthia Perkins obtained an order appointing commissioners to partition the two Walden tracts between her and her husband. The report of the commissioners partitioning the land was not filed until some time after the sale took place. It should have been filed before the sale, in order that the parties might know what land would be sold and in order that Cynthia Perkins might file exceptions to the report in case she was dissatisfied with the partition.
The Cal Perkins tract of 50 acres was purchased with Cynthia Perkins’ money, and, as the title thereto was never conveyed to her husband, he did not enjoy any delusive credit because of the apparent ownership of that tract, and the trial court properly held that the Cal Perkins tract should not be subjected to plaintiff’s debt. It appears, however, that the chancellor awarded Cynthia Perkins a homestead in the Cal. Perkins tract. Since she owned this land in her own right, it was unnecessary to allow her homestead therein and thereby defeat her right to such homestead as she might have in her husband’s land. The court directed that her part of the Walden tracts be laid off so as to adjoin the Cal Perkins tract. If possible, it should be laid off so that the dwelling house and appurtenances should be on the part allotted to Cynthia. In that event, of course, she would not be entitled to a homestead in that part of the land allotted to her husband. However, she still has an inchoate right of dower therein. As the judgment
B. M. Rose and Cynthia Perkins appeal not only from the judgment of sale, but' from the subsequent orders overruling their exceptions to the report of sale. It appears from the report of sale that the three tracts of land that belonged to Rose and the tract of land allotted to R. M. Perkins, husband of Cynthia, were first offered separately, and, there being no bids, were then offered as a whole and the plaintiff, Martha Bolton, became the purchaser. These tracts of land belonged to different parties. They were not contiguous, but were located in different sections of the county. Manifestly, such a sale was unfair and unjust to the defendants, because no one would be likely to bid on the several tracts as a whole except the plaintiff. Under such circumstances, tracts not contiguous and belonging to different defendants should be sold separately.
Judgment reversed and cause remanded for proceedings consistent with this opinion.