Townsend v. Wilson

114 Ky. 504 | Ky. Ct. App. | 1903

Opinion of the court by

JUDGE HOBSON

— Affirming.

Isaac Wilson died in 1863, and by his will devised to John N. Wilson $1,000, on the conditions that, if he should die without children, the legacy should then pass to the other heirs of Isaac Wilson. John N. Wilson died without children in 1896. The residuary legatees of Isaac Wilson obtained a judgment against John N. Wilson’s executrix for the amount of the legacy, and upon that judgment an execution was issued, and returned, “No property found.” They then instituted this action to set aside, as fraudulent as against them, a deed made by John N. Wilson in the year 1889 for the property in controversy, upon the recited consideration of love and affection, to appellants, Jennie F. Townsend and her two children, Elizabeth and John W. Townsend, on the ground that the conveyance was voluntary, and therefore void as against their judgment debt. By the terms of the deed the property was conveyed to the two children, and, if either died under 21 years- of age without issue, the interest of the one so dying passed to the survivor, and, if both died under 21 and without issue, the property passed to their mother, Jennie F. Townsend.

The defendants pleaded, in substance, that the deed was not fraudulent in fact, and that John.N- Wilson, after he made the deed, had other property, subject to execution, more than sufficient to pay his debts. The court sustained a demurrer to this plea. While there is some conflict in the authorities, the rule in this State has been from the beginning that, if a party be indebted at the time of a voluntary conveyance, it is presumed to be fraudulent as to his existing debts, regardless of the amount of the debts, the intentions or circumstances of the party conveying, or the amount of property conveyed. Hanson v. Buckner’s Ex’r, 34 Ky., 251, 29 Am. Dec., 401. This rule has been crystallized in our present statute, which provides: “Every gift, conveyance, assignment, transfer or charge made by a debtor of or upon any of his estate without valuable consideration therefor shall be void as to all his then existing liabilities.” Kentucky Statutes, section 1907. As to existing liabilities, by the express terms of the statute, every voluntary conveyance by a debtor of any of his estate is void. The purpose of the statute is to place the property of the debtor which is thus conveyed away in precisely the same situation as to his existing debts as if the conveyance had not been made. As to these debts, and as against the original grantee, the conveyance is a nullity. Enders v. Williams, 58 Ky., 350; Slater v. Sherman, 68 Ky., 206; Yankey v. Sweeney, 85 Ky., 62, 8 R., 945, 2 S. W., 559. The court therefore properly sustained the ■demurrer to this part of the answer.

The defendants also pleaded that the deed was not made in consideration of love and affection, but for a valuable consideration, and in support of this plea the mother, Jennie Townsend, was introduced as a witness; but the court sustained exceptions to her testimony in so far as she stated transactions between her and the decedent, J. N. Wilson, on the ground that she was testifying for herself. She was a party defendant to the action, and, in the event that her two children died in infancy and without issue, took the property in fee under the deed in controversy. She had, therefore, a vested interest in the property, although it was defeasible upon the children, or either of them, surviving their majority or leaving issue. But although her interest might thus be defeated, she had a certain interest in the property, and was thus testifying for herself. While there are cases in other States allowing the testimony of a party in interest as to a transaction with a decedent where the controversy is wholly with strangers, little weight can be given to such decisions, for the question must depend upon the language of the statute, and our statute is different from that in many other States. It provides, subject to certain exceptions that need not be noticed, that “no person shall testify for himself concerning any verbal statement of or any transaction with or any act done or omitted to be done by . . . one . . . who is dead when the testimony is offered to be given.” Civ. Code, section 606. As we have said, Mrs» Townsend was testifying for herself. She testified concerning a transaction with J. N. Wilson, who was dead when the testimony was offered to be given. The original statute allowing parties to testify for themselves read very differently. See original General Statutes. The purpose of the change appears to have been not only to exclude the testimony of a party as to a transaction with a decedent “in actions or special proceedings with the executor, administrator,” etc., as provided in the original statute, but in all actions where the person with whom the transaction occurred is dead, and can not be introduced to contradict the testimony of the interested party. Thus, in Harpending’s Exr’s v. Daniel, 80 Ky., 452, 4 R., 330, where a transaction had taken place with an agent who was dead at the time of the trial, it was held that the defendant could not testify for himself as to the transaction with the agent, although his estate was in no wise concerned. See, also, Maxey v. Bethel, 23 R., 1085, 64 S. W., 746. So, also, in Hurry v. Kline, 93 Ky., 358, 14 R., 330, 20 S. W., 277, the defendant was not allowed to testify as to what took place between him and the obligee in the note where the suit was by the assignee, although the estate of the assignor was not liable upon the assignment. In Turner v. Mitchell (22 R., 1784) 61 S. W., 468, the plaintiff sought to recover upon the ground that one of several sureties in the note had first ■ taken an assignment of the note to himself, and then assigned one-half of it to the plaintiff. The surety was dead at the time of the trial, and it was held that the plaintiff could not testify as against a co-surety to the transaction between him and the dead man. The same rule was recognized in Hagins v. Arnett (23 R., 809) 64 S. W., 430; Insurance Co. v. Beard (23 R., 1747) 66 S. W., 35. Aside from the statute, the parties in interest can not testify at all. The Legislature, in changing the rule, and allowing them to testify as to their acts and doings, has seen fit to except, among other things, transactions with deceased persons, for the reason that, if such testimony of a party in interest were allowed, it would place his adversary at great disadvantage, because of the difficulty in meeting it after the death of the person with whom the transaction was had; and, besides, the temptation to perjury and undue advantage would be given one of the litigants. The circuit court therefore properly excluded the evidence referred to, and, as without this there was nothing to impeach the recitals of the deed, properly subjected the land to the. debt.

Judgment affirmed.

Petition for rehearing by appellant overruled.