109 Ky. 711 | Ky. Ct. App. | 1901
Opinion of the court by
Affirming.
It appears from this proceeding that W. (1. Colson was possessed of considerable property in Bell county, Ky., from 1883 to about 1890, some by inheritance and some by purchase. He had married a daughter of J. M. Wheeler, who also owned an estate of some |40,000. While in solvent circumstances', Colson purchased a tract of land, for speculation apparently, situated in Bell county, his father-in-law paying one-thirdl the consideration for it, and Colson
It is not shown that Mrs. Colson ever knew that her husband took title to this tract of land to himself alone, or that she consented that he might do so. The proven agreement was that she was to own one-third of the land and its proceeds. Subsequently Colson sold this land and other property to the Pine Mountain Iron and Coal Company, taking in exchange about $1,300 in cash, and notes to himself for $5,000, and agreeing to take the two lots in controversy in this suit, being lots Nos. 10 and 11 of block 13, Pine Mountain Iron and Coal Company’s addition to the town of Pineville. This was during the boom period, when values of all properties in that section were more or less inflated, and of town lots especially so. The sale of the land known as the “Collins Tract,” in which Mrs. Colson or her father had the interest stated, was made in 1890, during her lifetime (she having died in August, 1890), bur was not conveyed until January, 1891.
Then it seems- that Colson, in attempted fulfillment of Ms agreement with his wife and the father-in-law, started to have the deeds to the Pineville lots made to Wheeler, but at Wheeler’s direction caused the deed' to be made to Colson’s infant son, the appellee, J. M. Colson, -son of his deceased wife. At that time Colson seems1 to have become extensively involved in debt, and was striving for time as against his creditors, resorting to many methods familiar in such transactions. Appellant, Sparks, subsequently procured a judgment against W. G. Colson for $97.93, and some $13 costs, on a liability antecedent to the deed to J. M. Colson, and caused.the execution to be levied on the two lots, and became the purchaser at the sheriff’s sale at the
Appellee, the inf-ant, by his next friend, brought this action against the creditor and the sheriff, seeking to enjoin the execution of the writ of possession, the infant not having been a party to the proceeding under which the lots were attempted to be sold. The circuit court upheld the title of the infant, and perpetuated the injunction.
The principal questions for our consideration are: (1) Was the agreement and transaction between the debtor, W. G-. Colson, and his wife and father-in-law, such as could have been enforced against Colson? A.nd (3) in that transaction, and Colson’s attempt to execute that agreement, in violation of appellant’s right as Colson’s creditor? Even in the absence of the numerous high authorities on the subject, we would have no hesitancy in adopting the views herein expressed". These authorities include many examined, but not cited. Those from this court, covering a long period, and the services of many of its most illustrious members, are deemed sufficient. The facts above stated are proven beyond question; indeed, are proved by witnesses introduced by appellant. There is no evidence to the contrary. The usual difficulty in applying the principles of this decision to cases attempted to be brought within their operation is the proof of the consideration moving the conveyance, and the question of fraud on t-h-e part of the debtor. The fact that the man is largely in debt, insolvent, and makes a preferential conveyance to his wife, are circumstances calculated to arouse suspicion, bringing seriously into question the truthfulness of the alleged agreement. An examination of the cases where the principles of this decision have been denied will
After the issue in this case had been formed, demurrers and motions to strike from pleadings having been filed and acted on by the court (whose rulings in determining them we think were correct), appellant filed his affidavit
The next point made in the affidavit was that the judge’s brother-in-law was surety on a supersedeas bond executed to slay proceedings on the judgment rendered in that court awarding the possession of the lots in controversy to af-fiant, and that the decision of this case would determine the liability of the parties to that bond. The affiant was in error, in our opinion, as to the legal effect of the super-sedeas bond in question. That bond had been executed in another proceeding. The appeal had been prosecuted and dismissed. The liability of the parties to the bond thereby became fixed, and in no wise could the determination of this suit affect it.
The affidavit further stated that the judge and his brother-in-law, J, 8. Bingham, and the infant plaintiff’s father, Wr. G. Colson, were, and had always been, on the most intimate terms (of friendship, it is presumed), and engaged in many business transactions together, and “that
The affidavit further proceeds to say that “the judge is personally hostile to this affiant herein.” In Insurance Co. v. Landram, 88 Ky., 433, (11 S. W., 367, 592), this court held that, to require the judge to vacate the bench, and give place to a special judge to try the case, the affidavit must state such facts as would prevent the judge from properly presiding in the case, — •such as personal hostility, personal interest, partiality, etc., — of the sufficiency of which the judge must, of necessity, judge, but subject to appeal. But it is not enough to merely assert the fact of personal hostility or partiality. He must state the facts which he alleges constitute the state of feeling complained of. We have held that the truthfulness of the facts stated can not be questioned by the judge (Vance v. Field, 89 Ky., 178, 12 S. W., 190); therefore it is all the more im-portan t that the facts, and not the litigant’s conclusions