85 Ky. 55 | Ky. Ct. App. | 1887
delivered the opinions oe the court.
Yankey, &c., v. Sweeney, &c.
The appellants are husband and wife. The appellee William Sweeney, on the 14th day of February, 1874, was appointed and qualified as guardian of the appellant Sallie Yankey, then Sallie Peter, by the Washington County. Court. The appellants instituted suit in the Washington Circuit Court against the appellee William Sweeney, and his surety, on his guardian’s bond, by which they sought to recover the amount shown to be due the appellant Sallie, by the appellee’s final settlement as her guardian with the Washington County Court, and at the March term, 1881, of the Washington Circuit Court, they recovered judgment against the appellee as such guardian on his settlement, and his surety, for the sum of nine hundred and twenty dollars and forty-four cents, with interest thereon at the rate of six per cent, per annum, from the 16th day of February, 1880, until paid, and twenty-four dollars and fifty-five cents costs.' Execution was issued on this judgment and placed in the hands of the sheriff of Washington county on the 3d day of August, 1881, which was on the 11th of August, 1881, returned by
The appellee William Sweeney owned this land at the time he was appointed and qualified as the guardian of the appellant Sallie. The appellants, on the 12th day of August, 1881, instituted this action in equity, in the Washington Circuit Court, against the appellees, William Sweeney and M. D. Montgomery, husband of Lucy 3). Montgomery, she having died since the making of said deed, and Rosa D. Montgomery, an infant, and only child of M. D. and Lucy D. Montgomery, on said return of no property found, and sought to subject said tract of land to the payment of said judgment and costs upon the ground that the appellee William Sweeney, as guardian of the appellant Sallie Yankey, was liable to her in the full sum for which the appellants obtained judgment at the time lie conveyed the land to his daughter, Lucy I). Montgomery; and that said conveyance was voluntary, fraudulent and void, as against the claim of the appellants. The appellee William Sweeney did not defend the action. The appellee M. D. Montgomery in right of himself and of his infant daughter Rosa, for whom he is guardian, defended the action upon several grounds. First, he relied on a former judgment rendered by the Washing
The deed of conveyance dated the 25th of January, 1878, by, appellee William Sweeney to his daughter, Lucy D. Montgomery, recites the consideration for the conveyance to be “one dollar, and the further consideration of the love and affection the party of the first part bears to his daughter, the party of the second part.” The conveyance is absolute.
That the appellee was liable as the guardian of the appellant Sallie Yankey, for the amount reported in his settlement, and for which appellants recovered judgment, at the time of said conveyance, there is no
That this conveyance is void according to section 2 of article 1, chapter 44, of the General Statutes, as well as an unbroken line of decisions of this court, as to all of the appellee William Sweeney’s then existing liabilities, there is no doubt. And that the claim of the appellant Sallie Yankey was then an existing liability against the appellee Sweeney, there is no doubt. And the tract of land should have been subjected to the payment of appellants’ judgment, unless M. D. Montgomery’s defenses, or some one of them, are sufficient, which we will now notice.
First, his plea in bar, by former adjudication, is not sufficient, because when the appellants brought their first suit to subject the tract of land in question to the satisfaction of their claim, upon the ground that the conveyance to Mrs. Montgomery was voluntary, and therefore void and fraudulent as to the liabilities then existing against Sweeney, the vendor, they had not caused an execution to be issued on their judgment against Sweeney, and a return thereof, by the proper officer, “no property found.” The issual of an execution on their judgment, and return thereof no property found, was a condition precedent to their right ■to maintain an action to subject said land to the payment of their judgment. Therefore, their action was premature, and the court had no jurisdiction to hear and try the case upon its merits. And it is well settled, that in order for a judgment to bar another suit
Tested" by this rule, the appellants’ former action, although seeking the same thing as sought in this action — -the subjection of the land in question to the payment of said debt — was prem ature, because the condition precedent to the appellant’s right to maintain the action had not accrued, and the court, therefore, had no jurisdiction to hear the case upon its merits, and,, it is presumed, dismissed it for that reason. Therefore, the plea in bar cannot be sustained. Nor do the second and third pleas present a defense. The fact that appellee Sweeney might have had property, outside of that conveyed to Mrs. Montgomery, subject to execution,, sufficient to pay said debt, and that the apjjellants, while the execution was in the sheriff’s hands, knew it, and were advised to have it levied on by Montgomery, and failed or refused to do so, or that appellant John S. Yankey, and Sweeney, notwithstanding Sweeney had property outside of that conveyed to Mrs. Montgomery, subject to execution, sufficient to pay said debt, contrived to have the land in question subjected to the payment of said debt, in order to deprive Montgomery of his marital rights therein, cannot avail as a defense. Because, the conveyance to Mrs. Montgomery, being without any valuable consideration, was void as to the then existing liabilities of Sweeney. That is, the deed of conveyance passed to Mrs. Mont
The judgment of the lower court as to this case is reversed, and the case remanded for further proceedings consistent with this opinion.
Montgomery v. Turney's Adm'r.
The appellee having brought an action to subject the same land mentioned in the above opinion to the satisfaction of a judgment on a debt which existed prior
Sweeney v. Montgomery, &c.
In this case, the appellee sought to obtain the possession of the tract of land mentioned in the first opinion herein from the appellant, upon the ground that his wife, Mrs. Montgomery, having died and having had a child born alive by him, and he having reduced said land to actual possession during the lifetime of his wife, he was entitled to the possession thereof as tenant by the curtesy during his life. The appellant denied that the appellee had reduced said land to his actual possession during the lifetime of his wife. The lower court having found in favor of the appellee, the appellant has appealed to this court. The facts are, that after the appellant had conveyed the land to Mrs. Montgomery, he continued to actually possess and control said land; and that appellee and his wife, at the time of said conveyance and during her life, lived with the appellant as members of the family, and were so living with the appellant at the time of the death of Mrs. Montgomery. Also, that after the appellant conveyed the land to Mrs. Montgomery, he continued to possess and control' it from that time forward until her death; yet, during that time, his possession of the land
Section 1 of article 4, chapter- 52, of- the General Statutes,. provides, in substance, that where--there is ■issue of the marriage born alive, the husband shall have an estate for. his own- life in all the real estate .-owned and possessed by. his wife at the time of her -death, or of which another may be then seized to her use. It is well settled, by repeated- decisions of -this •court, that a husband is not entitled to curtesy in the real estate .of his deceased wife, unless he has acquired the--actual possession of such estate-during her life. It is required of the husband to take actual possession of .his wife’s land *as a condition-precedent to his-right of curtesy therein, for the .purpose of strengthening her title to it, and-to protect it from, intrusion and hostile possession, which might, by its continuance, endanger her title. This being the reason for the rule,-whenever its equivalent is complied with, then the rule is complied with. For instance, if the guardian of the wife holds the possession of her land at the time of her death, then the reason of the rule is complied with, and the husband is entitled to curtesy in the land. And, if a joint tenant with the'wife holds the friendly possession of the land at the timé of her death, here 'his possession is her possession, and the reason of the rule is complied with. So, if a trustee of the wife holds the possession of the land for the wife at the time of her death, here, also, the reason of the rule ■ is complied with,' 'and the husband is entitled to cur
Now, the appellant, having conveyed the land in question to Mrs. Montgomery by an executed conveyance, and having held and possessed the land thereafter until her death, she and her husband living with him, not, however, in hostility to her right, but in accordance with it and friendly to it, such holding must be construed as for her use. Therefore, the reason of the rule in this case is complied with, and the appellee is' entitled to curtesy in the land, subject, however, to' the claims of appellants, Yankey and wife, and the appellee, the administrator of Turney. If the whole of said land is not exhausted by sale for the satisfaction of said two claims, then the appellee is entitled to curtesy in the remainder, and the judgment of the lower court is modified to that extent, and must be reversed.
Montgomery, &c., v. Sweeney.
The appellant instituted this action against the appellee to recover the possession of two tracts of land, one of seven acres and the other of one hundred and forty-one acres, upon the ground that he was entitled to a life estate therein as tenant by the curtesy of his wife, Lucy Montgomery, she having had issue of their marriage born alive, and died possessed of said tracts of land.
The record shows that on the 25th of January, 1878, the appellee conveyed to Lucy Montgomery these two
It is clear, from the proof in the case, that Lucy Montgomery was possessed of these tracts of land in the same way that she ,held the possession of the tract of land considered in the case just disposed of; and the same rule announced in that case is applicable to this.
The lower court, in its judgment, allowed the appellee the use and control of these two tracts of land during his life for a support, and, subject to this life use and control, sustained appellant’s right of curtesy in both of the tracts of land. From that judgment appellant appealed to this court.
The record shows that appellant and appellee were-very unfriendly — each accusing the other of harsh treatment — and the probabilities are that this estrangement will continue; and the reasonable supposition is, that appellee would not provide for the appellant’s support and comfort with that kind consideration that declining years demand.
We think, therefore, that the lower court did right in giving the appellee the exclusive use and control of the two tracts of land during his life. So far, the judgment was right. But it did not go far enough in this: the appellee, in case the use and profits of the