66 Ky. 322 | Ky. Ct. App. | 1867
delivered the opinion oe the court:
Matt. Wilson, being insolvent, at least owing more than his property was worth, and being sued by some creditors, made an arrangement with Snelling, or Emmons & Snelling, to leave the county of Bath, his place' of residence, and cross over into Fleming, an adjoining county, until they should bring suit and procure writs against him, when he was to return, so as to have these executed, and then again be absent, so that no other judgments might go at the ensuing term of the Bath circuit court. Snelling and Emmons & Snelling, accordingly, brought their suits, obtained summons, had their own clerk appointed special deputy to execute the writs, they then doing business on the Licking river, which seems to be the boundary between the two counties ; and Matt. Wilson, in pursuance to the arrangement, and notice which they gave him that the writs were ready, about dark, on the night of March —, 1862, came across the river and permitted the writs to be served in time for the ensuing term of the court, which begun March 17, 1862, and then returned to Fleming, and remained out
Elizabeth Wilson, G. W. Wilson, and R. T. Wilson & Co., all being separate creditors of Matt. Wilson, brought this joint suit against him, Sanders, Snelling, Emmons & Snelling, and others, February 16th, 1863, alleging that all the aforesaid arrangements, by which Snelling & Emmons and Snelling were enabled to obtain their judgments and executions, were made and entered into by said Matt. Wilson in contemplation of insolvency, and with a design to prefer them to the exclusion of other creditors; and that such were the design of Snelling & Emmons and Snelling, and that, by reason thereof, the same inured to the benefit of all his creditors.
It is averred that the executions, although levied in June, 1862, and the land sold July 14th, 1862, had not been returned to the clerk’s office when this suit was filed, as they were found in the sheriff’s hands,; and this allegation is not controverted, nor does the record show when the sheriff did actually return the executions to
There are two questions involved :
1. Was this an assignment within the purview of the statute of 1856?
2. Was the suit brought within proper time? Upon the solution of these depends the correctness of the judgment dismissing plaintiff’s petition absolutely.
As said by this court in Letcker, &c., vs. Stagner (2 Duvall, 424), “the aim of the act of 1856 was to secure, as far as it could, equality among the creditors of insolvent debtors, by invalidating any act whereby he might attempt to transfer to one or more creditors, to the exclusion of others, property, or any .lien .upon it, giving priority or other inevitable advantage.
“ Such priority or advantage might result from a sale or a mortgage or an assignment, and, therefore, all these modes of preference are interdicted; but any other mode chosen with the same object, and operating to the same end, whatever may be its form, should be considered an assignment, as it must be, essentially, otherwise the letter may kill the spirit, and a statute, which should be liberally construed, may easily be evaded and made a dead letter.”
The only judgments, so far as this record shows, that went against Matt. Wilson at the March term, 1862, of the Bath circuit court, Snelling or Emmons & Snelling were interested in, either as plaintiffs or security for him.
The evidence does strongly indicate that Snelling and Emmons & Snelling knew, or had information, that Matt. Wilson owed more than he was able to pay, and that this land constituted nearly all his property liable to execu
The judgement of five hundred and thirty-four dollars and eighty-four cents, with interest from January 1, 1862, in favor of Emmons & Snelling, and the judgment of one thousand three hundred dollars, with interest from No.vember 2, 1861, in favor of Snelling against Matt. Wilson, alone evidence his insolvency, as his property was insufficient to satisfy these. That the procuring of these judgments, executions, and the sale, by the means resorted to, was essentially an assignment within the purview of the statute of 1856', wm do not doubt — as much so as was the confession of the judgment, and permitting the executions to go' thereon, in Letcher vs. Stagner. These things as effectually operated the consummation of the object as that did, and comes as thoroughly within the evils intended to be remedied by it. And if it intended the inhibition of preference among bona fide creditors, this arrangement was as contrary to its pervading spirit. But such transfers must be assailed within six months after the recording of the transfer or delivering of the property or effects transferred.”
No legal possession, such as would notify other creditors, had been taken of this land on the sale, nor could the sheriff then deliver it without a delivery of the growing crop, which he did not sell, and which was not sub
The executions and levy inured an assignment to the benefit of all the debtor’s creditors; the execution sale, therefore, should be set aside, and the land resold, and its proceeds divided pro rata among Matt. Wilson’s creditors.
The judgment dismissing the petition of appellants was essentially. erroneous, and is, therefore, reversed, with directions for further proceedings in conformity to this opinion.