THE Southwestern Reporter. VOLUME III. Gross and others . EDDINGER and others. (Court of Appeals of Kentucky. February 5, 1887.) FRAUDULENT CONVEYANCES-HUSBAND CONDUCTING BUSINESS AS WIFE'S AGENT-LAND BOUGHT WITH PROFITS. Where a husband, being indebted at the time, had his wife empowered to trade as a feme sole, and thereafter transferred his business to her, conducting it afterwards as her agent, but she has nothing to do with the management, buys no supplies. makes no sales, the entire management and control being left to him, and out of the profits a lot is bought, which is conveyed to her, held, his creditors may set aside his conveyance to the wife as in fraud of their rights, and subject the land to their debts. Appeal from Louisville chancery court. M. A. & D. A. Sachs, for appellants. Lane & Burnett, for appellees. LEWIS, J. Appellees instituted their respective actions in the Louisville chancery court, for the purpose of setting aside a conveyance of a house and lot to appellant M. E. Gross, the wife, and subjecting it to the satisfaction of their debts against George S. Gross, the husband; and, the two cases having been tried together, judgment was rendered in favor of each of the plaintiffs for a sale of the property, as prayed for in their petitions. The action of appellees Eddinger & Bro. was upon a judgment rendered in their favor against George S. Gross, in October, 1880, for $216.83, with interest from that date, upon which an execution was duly issued and returned by the proper officer, with an indorsement thereon, "No property found." The action of appellees Plaffenger & Co., now standing in the name of Conrad, surviving partner, was upon an open account against him extending from March, 1879, to March, 1880, the balance claimed being $188.16. In the first-named action it is stated that, subsequent to the issuing and return of the execution mentioned, George S. Gross purchased the property; and, in order to cheat, hinder, and delay his creditors, fraudulently caused the deed therefor, of date September, 1883, to be made to his wife, M. E. Gross, notwithstanding he is the real owner of and paid for the property and improvements thereon. In the other action substantially the same allegation of fraud is made, and an attachment was asked, issued, and levied on the house and lot. It appears from the evidence that, in 1879, George S. Gross was the owner of a coffee-house on Water street, in the city of Louisville. But in October, 1880, a license to carry on a tavern, with the privilege to retail liquor at the corner of Twelfth and Main streets for one year from July, 1880, was issued to "Geo. Gross, Agent." In July, 1881, by judgment of court, M. E. Gross v.3s.w.no.1-1 was empowered to act as a feme sole, as provided by statute; and on the twenty-third of that month a license was issued to her to keep a tavern at the same place for one year, the bond required in such cases being signed "M. E. GROSS, by GEO. GROSS, Agent." From that place they removed to Market, between Third and Fourth streets, where the same business was continued in her name about four months, when the business and property were sold, according to the deposition of George Gross, for a profit of $1,000; and with that, and the profits on the sales at the bar, the lot was purchased, and the improvements put on it, the whole costing about $2,000. In addition there was enough to recommence the same business at another stand, on Market street, where they now are. M. E. Gross had no means of her own at the time the business was commenced at the corner of Twelfth and Main, except such as may have been given to her by her husband, which was very little, if anything There is no satisfactory reason given by either of them for the sudden transfer of the ownership of what little capital he may have had to her, and the assumption by him of the position as agent, instead of principal, in the business. She is not shown to be at all qualified or adapted for the business of retailing liquors, nor does she appear to have had any discretion, or to have given any attention to the management of it. Though asked to state, she could not tell from whom the bar-room at Twelfth and Main streets was purchased or leased, nor how much was paid or agreed to be paid for it. She does not state how much money she had of her own when they went to that place, nor that she had any except that given by her husband. She bought no supplies, made no sales, handled none of the money; but admits, in her deposition, that her time was taken up in attending to household duties, and caring for her children. She did not handle or control the $1,800 for which the business on Market, between Fourth and Fifth streets, was sold, being ignorant of the bank it was deposited in. She does not appear to have had anything to do with the negotiation for the lot in question, nor could she, in her deposition, state how much was paid for it, or for the improvements put on it. The entire management and control of the business now claimed to belong to the wife was left to the husband, without question or knowledge on her part of the manner in which he was carrying it on; and the only explanation he undertakes to give for this extraordinary abandonment by him of the ownership of the business and transfer to his wife, who was totally unfit for it, and without means of her own to carry it on, is that he, for a short time, had rheumatism,-how long does not appear. Though by his skill and industry alone-for she contributed nothing enough was realized out of the business, in about two years after she was invested with the rights of a feme sole, to buy and improve the lot at a cost of about $2,000, besides furnishing stock for the new stand on Market, between First and Second streets, he claimed neither compensation nor share in the profits; but, when asked what he was to receive for his services, said: "I got all I wanted to eat, clothes to wear, and a good bed to sleep on." It seems to us that, as this record stands, it would be contrary to common experience and common sense to attribute the conduct of the husband and wife to any other purpose than a fraudulent device to cheat, hinder, and delay his creditors; and as the condition of the parties was not such as authorized the judgment making her a feme sole, in the meaning of the statute, it is a reasonable supposition that it was sought by them in order to further his fraudulent purpose. As, therefore, the transfer by him to her of his capital and business was fraudulent as to his creditors, the lot in question, purchased with the proceeds, is liable for the debts of appellees which existed when the transfer was made; for she contributed neither capital, labor, nor skill in the purchase of the lot. Wherefore the judgment in both cases is affirmed. REIDHAR v. PFEIFFER. (Court of Appeals of Kentucky. February 5, 1887.) BANKRUPTCY-PLEADING DISCHARGE. In pleading a discharge in bankruptcy as a bar to an action of debt, it is not necessary to allege that the court granting such discharge had jurisdiction, or to state facts showing that it had such jurisdiction. Appeal from common pleas court, Jefferson county. Goodloe & Roberts, for appellant. Elliott & Hemingray, for appellee. LEWIS, J. The only question in this case is whether, when a discharge in bankruptcy is pleaded and relied on as a defense to an action of debt, it is indispensable to state that the court granting such discharge had jurisdiction, or to state facts showing it had jurisdiction. The same question was considered by this court and determined in the case of Laidley v. Cummings, 7 Ky. Law Rep. 616. There it was held that the requirement of the Civil Code in this respect, as to judgments rendered by courts of other states, does not apply to United States courts; for the jurisdiction of the latter is regulated by laws of congress, of which all state courts take judicial notice. As the answer in this case contains a sufficient statement of facts to constitute a defense to the action as to appellee, Peter Pfeiffer, the lower court did not err in rendering judgment in his favor, and it is affirmed. KINCHELOE v. MCCAIN'S EX'RS. (Court of Appeals of Kentucky. February 8, 1887.) 1. EXECUTION-Sale-AGREEMENT TO STAY-RIGHT TO REDEEM. Judgment being entered for the sale of land to satisfy a mortgage upon it, it was agreed between the parties that no sale should be made for a year, if the defendant should, within 30 days, assign to the plaintiff a certain other mortgage. The defendant failing to comply with this agreement, held, a sale of the land might be ordered, and the court's commissioner was vested with no power to reserve the defendant's right to redeem the land after the sale had been made. 2. SAME-APPRAISER'S ESTIMATE OF VALUE OF LAND, ERROR in. Error or mistake of judgment on the part of appraisers, appointed to fix the value of land to be sold at judicial sale, is no ground for setting aside the sale. Appeal from circuit court, Marshall county. This action was brought by R. McCain against appellant to enforce payment of notes, and foreclose a mortgage upon land, executed by appellant. A judgment was rendered for appellee for amount claimed, and a lien given on the land. By consent of parties the judgment was not to be executed for one year, upon condition that the defendant did certain things as equivalent to a satisfaction of the judgment. These conditions not being complied with, the judgment was executed. W. G. Bullitt, for appellant. Gilbert & Reed, for appellee. LEWIS, J. By the judgment rendered December 18, 1880, the land mortgaged was directed to be sold to satisfy the plaintiff's debt therein mentioned. But it was provided by consent of the parties that no sale should take place for 30 days from the date of the judgment, and if, within that time, the defendants, Waller Kincheloe and Elias Kincheloe, should, in writing, assign and transfer to the plaintiff the full benefit of a mortgage from Waller to Elias Kincheloe, of certain property which the plaintiff had in his petition attacked as fraudulent, in order to further secure the plaintiff the full payment of his judgment debts, then no sale should take place for one year. It was further provided that, in the event the defendant Waller Kincheloe failed to pay the plaintiff's judgment in full within the period of one year, then the plaintiff had the right to a sale of the land for whatever might remain unpaid. It appears that the judgment was not executed until November, 1883, when the land was sold at the price of $735, and purchased by the plaintiff; and the only question presented by this appeal is as to the exceptions to the report of sale, which were overruled. One of the grounds of exception is that the land was appraised at less than its value, because the appraisers were not acquainted with it. The appraisement was regularly and legally made, and a mere error or mistake in the judgment of the appraisers as to the value of the land appraised, even if it was established by proof,-which is not done in this case, would not be sufficient grounds for setting aside the sale. There is no proof that the plaintiff promised to permit the defendant to redeem the land. There was no judicial discretion given to the commissioner, as contended by counsel, but it was simply provided in the judgment that if, within a prescribed period of time, certain things were done, which were intended by the parties as the equivalent of satisfying the judgment, no sale should take place; and, after the expiration of that time, the commissioner had no discretion but to sell the property as directed. This record does not show that the appellant complied, or attempted to comply, with any of the terms upon which the sale was to be suspended, or even offered to redeem the land, and he has no right, therefore, to complain that the sale was made, particularly as it was delayed by the plaintiff nearly three years, instead of one. Judgment affirmed. DAVIS v. BUFORD'S EX'RS. (Court of Appeals of Kentucky. February 8, 1887.) WILI-PERPETUITIES. A devise to A. for life, and, after A.'s death, to B., and, if B. should die without children, then to four other named kinsmen, or to their children if the parent should be dead, and, if no children, to the survivors of the four devisees, is not a perpetuity, such as is prohibited by Gen. St. Ky. c. 63, art. 1, § 27, providing, "The absolute power of alienation shall not be suspended, by any limitation or condition whatever, for a longer period than during the continuance of a life or lives in being at the creation of the estate, 21 years and 10 months thereafter." Appeal from circuit court, Montgomery county. Peters & Tyler, for appellant. C. Brock, for appellee. PRYOR, C. J. The testator devised his entire estate to his executors in trust, with directions to apply the income, or so much as might be necessary, to the support of his sister Mary during her life; and, after the death of his sister, he then devises one-half of his estate to his niece Mary Davis, for her sole and separate use, with the proviso that, if Mrs. Davis should die without children, her portion is to go to four others of his kindred, naming them, then living; and, if any of them should be dead leaving children, their portion to go to their children, and, if no children, to the survivor or survivors of the four devisees. We perceive no such devise in this case as would create a perpetuity, and thereby render the devise void, or vest the title in the first devvisee. It may be that all of the four kindred designated to take at the death of Mrs. Davis may die before she does, without leaving a child or children, and thereby prevent the estate from passing under the will, but the estate would then pass to the heirs of the testator by descent. All of these devisees were living, and the estate held in trust by the executors for the benefit of those entitled. The power of alienation is not suspended so as to bring this case within the twenty-seventh section of article 1, c. 63, Gen. St. The contingency may happen by which the title will not vest in those living at the time the devise was made, and who would be entitled if they should survive the life-tenant. |