October 20, 2012

Marcum et al. v. Powers, Wayne, 1888

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MARCUM et al. v. POWERS.

COURT OF APPEALS OF KENTUCKY

9 S.W. 255; 1888 Ky. LEXIS 190; 10 Ky. L. Rptr. 380

September 25, 1888, Decided

PRIOR HISTORY:  [**1] 

Appeal from circuit court, Wayne county.

D. L. Powers recovered a judgment against P Marcum in the circuit court of Clinton county, sued out an execution thereon, which was returned, "No property found." Thereupon Powers instituted this suit in the circuit court of Wayne county against Marcum et al., to set aside a deed made by Marcum, conveying to his daughter, as a gift, a tract of land situated in Wayne county, and to subject said land to satisfy his judgment, obtained as above stated, alleging that this gift to his daughter had been made by Marcum after the debt was contracted for which plaintiff had obtained his judgment. Defendant Marcum demurred to the petition, insisting that the court had no jurisdiction; he being a citizen of, and having been summoned in, Clinton county. This demurrer having been overruled, defendants filed an answer, and a demurrer to it was sustained. Defendants not asking leave to amend, judgment was rendered for plaintiff. Defendants appeal from this judgment, and from an order of court refusing to set aside this judgment and permit them to file an amended answer at the next term of the court, assigning, in an affidavit, as a reason for their failure to  [**2] ask leave to amend their answer before judgment was rendered, that their attorney had been compelled to leave court before the demurrer to their answer had been filed.


COUNSEL: J. A. Brents, for appellants. Sam. C. Hardin, for appellee.

JUDGES: BENNETT, J

OPINION BY: BENNETT

OPINION
 [*256]  BENNETT, J.

The debt on which the appellant P Marcum was sued by the appellee, and on which judgment was rendered in the Clinton circuit court, upon which judgment execution was issued, and returned by the sheriff, "No property found," was created before the appellant conveyed the land in controversy to his daughter. It is alleged in the appellee's petition that the conveyance of said land was without any valuable consideration,—a mere gift. This allegation, not being denied by the appellant, must be treated as true. It is well settled that a gift of property, real or personal, does not defeat the right of a creditor of the giver, whose debt existed at the time of the gift, to subject the property to the payment of the debt. The demurrer was sustained to the appellant's answer. He did not except, nor ask leave to amend. It was not error, therefore, to render judgment for the appellee.

The excuse offered by the appellant at a subsequent term of  [**3] the court for not excepting and asking leave to amend was not sufficient. Besides, the amendment tendered at said term did not cure the defect in the original answer. The land which the appellee sought to subject to his debt lies in Wayne county. It was therefore proper for the appellee to bring his action in that county. The judgment of the circuit court is affirmed.


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