October 5, 2012

Owens v. Childress, et al., Rockcastle, 1920

Owens v. Childress, et al.

COURT OF APPEALS OF KENTUCKY

189 Ky. 676; 225 S.W. 487; 1920 Ky. LEXIS 496

November 26, 1920, Decided

PRIOR HISTORY:  [***1]  Appeal from Rockcastle Circuit Court. 

DISPOSITION: Judgment affirmed.

COUNSEL: C. C. WILLIAMS for appellant.

L. W. BETHURUM for appellees. 

JUDGES: JUDGE THOMAS. 

OPINION BY: THOMAS 

OPINION

 [**487]   [*677]  OPINION OF THE COURT BY JUDGE THOMAS--Affirming.

In 1915 the appellant, Walker Owens, recovered a judgment against G. M. Childress and J. E. Bullock in the Rockcastle circuit court for the sum of $ 375.00, interest and cost. An execution issued on the judgment was returned "no property found" and this suit was instituted in the nature of a bill of discovery, under the provisions of section 439 of the Civil Code, and by it plaintiff sought to subject to the satisfaction of his debt a house and lot in Mt. Vernon, Kentucky, which had been conveyed to the defendant, Sallie A. Childress, wife of G. M. Childress, on April 13, 1918, by W. L. Richards and wife, upon the ground that the husband (appellee, G. M. Childress) had actually paid for the lot and he fraudulently procured the deed to be executed to his  [*678]  wife for the purpose of defrauding his creditors. The answers filed put in issue the material averments of the petition, and upon final hearing, after proof taken by the respective parties,  [***2]  the court dismissed the petition, from which judgment plaintiff appeals. The only question before us touching the propriety of that judgment is one of fact, and it having been determined in favor of defendants by the chancellor who tried the case, we are not authorized under the well settled practice of this court to disturb his finding, unless it be against the preponderance of the evidence. Under that rule, even if there was a doubt as to the propriety of the judgment, it should be resolved in its favor. While not disputing the rule, it is earnestly insisted by counsel for plaintiff that the overwhelming preponderance of the evidence  [**488]  substantiates his client's contention as set forth in the petition. In support of this position counsel refers to Bigelow on Fraud, page 186; Wait on Fraudulent Conveyances, section 308, and a number of earlier cases from this court, including that of Sikking v. Fromm, 112 Ky. 773, 66 S.W. 760, asserting the general principle that, in a contest between creditors and the wife of a debtor, the presumption is against the wife and the burden is upon her to affirmatively show by clear and satisfactory evidence, not only that she paid [***3]  for the property sought to be subjected, but that the payment was made with funds to which her husband was not entitled. The rule of practice contended for grew out of the common law right of the husband to appropriate to his own use the personal property of his wife by reducing it to possession, and it had a footing in this Commonwealth till the passage of what is commonly known as the Weissinger act of 1894, which is now section 2127 of the Kentucky Statutes. Up to that time this court, following the common law rule, held that the burden was upon the wife to show by clear and satisfactory evidence that the conveyance attacked was for a valuable consideration and paid for with her separate property. But, in the case of Guthrie v. Hill and wife, 138 Ky. 181, it was held that the Weissinger act changed the common law rule and that the burden which it cast upon the wife no longer prevailed in this jurisdiction. The language of the court in that opinion is: "Since the passage of the Weissinger act, however, no such presumption arises. By the express provision of that act a married woman now holds and owns all her  [*679]  estate, to her separate and exclusive use, and [***4]  free from the debts and control of her husband. Under this act the wife has the same right to own property and make money as has her husband. If a creditor seeks to subject her property to the payment of her husband's debts, on the ground that it was acquired in fraud of his rights, he must allege and prove facts showing such fraud. It is no longer necessary for the wife to allege affirmatively that the property which stands in her name is her separate property. The statute makes it so. All that the wife has to do is to deny the allegations of fraud. If the husband's creditor fails to show fraud he cannot subject her property to the husband's debts," and the opinion expressly overruled the Sikking case announcing a contrary view. The Guthrie case has been followed by those of Cogar v. National Bank of Lancaster, 151 Ky. 470, 152 S.W. 278; Sticks v. Calender, 155 Ky. 806, 160 S.W. 514, and other subsequent ones. So that the presumption contended for in this case is no longer the law with us. The burden then was on the plaintiff, Owens, to show by sufficient evidence all the facts necessary to entitle him to the relief prayed for in his petition. The court held [***5]  that he failed to discharge that burden, and after a careful reading of the record we are inclined to agree with the court, at least we are not prepared to say that his judgment was against the preponderance of the evidence.

Briefly, the undisputed facts, as appear from the record, are that defendants have been married some twenty-five years or more and at the time of the execution of the deed in question they had eight children, six of whom were infants and resided with their parents. The husband is a blacksmith and worked regularly at his trade, earning, when he could get work to do, about $ 3.50 per day. The wife's father, when she was married, gave to her a cow and hog or two which she appears to have cared for and with the increase she began to accumulate small amounts of money. She took boarders and did some washing for other people, and in these ways managed, with the strictest economy, to accumulate small pittances. About the time of the marriage or shortly thereafter, two small tracts of very poor land in the southern portion of Rockcastle county were purchased, one from her father and one from her husband's father, and the proof shows that these tracts were paid for by the [***6]  savings of the wife, although the deeds, made much later, were executed to the husband, but he shortly  [*680]  thereafter executed one conveying both tracts to his wife. The combined consideration for both of the tracts was $ 422.50. In the meantime Mrs. Childress sold small quantities of timber and tan bark from the two tracts, which amounted to some three or four hundred dollars, and at the time of the deed attacked in this suit she had orally agreed to sell the farm, consisting of both tracts, for an entire consideration of $ 375.00, a portion of which had been paid to her. It is true that, according to the testimony, the wife in making one payment on the lot in Mt. Vernon borrowed from her husband one hundred dollars, but it is shown by their testimony and that of other witnesses that she afterwards repaid him that sum out of proceeds of the sale of the farm. It furthermore appears from the testimony of disinterested witnesses, as well as from that of the defendants, that the husband seriously objected to his wife purchasing the lot in Mt. Vernon and to her selling the farm, since he was not satisfied to live in Mt. Vernon and preferred to reside upon the farm. But his wife's [***7]  choice in the matter prevailed and the Mt. Vernon lot was purchased. We are unable to find any fact or circumstance in the case of a doubtful or suspicious nature. The testimony given by defendants is consistent with the other proof in the case. The amounts involved in the transactions are small and could easily be accumulated and handled by the wife in the manner she describes. Experience and observation would convince us that the husband would have great difficulty in accumulating any substantial sum from his earnings of $ 3.50 per day  [**489]  over and above the necessary expenses of his family, if indeed he could meet them with his earnings. It is quite possible that defendants could have shown, had they chosen to rely on that defense, that the payments made on the Mt. Vernon lot, if with money belonging to the husband, were exempt to him. No such defense was made, however, and we can not rest our opinion upon it, but we do hold that the judgment upon the merits of the issue of fraud alleged in the petition is sustained by the evidence, and under the rule of practice, supra, prevailing in this court we are not authorized to reverse it.

After the judgment dismissing the [***8]  petition was rendered plaintiff entered motion to require defendant, G. M. Childress, to pay into court the sum of $ 150.00, which it was claimed he had upon his person and otherwise secreting from his creditors. The motion was sustained  [*681]  and defendant was ordered to pay the money to the clerk of the court. He failed to do so and at the next term of the court a rule was issued against him to show cause why he had not complied with the court's order, and in his response to the rule he stated that he had spent the money which the court ordered him to pay before making of that order. Evidence was heard, and the court discharged the rule, and appellant now insists that we, on this appeal, review the court's ruling on that matter. We find ourselves unable to do this, however, for three reasons: (1) section 739 of the Civil Code requires an appellant to file with the transcript in this court a statement containing, among other things, the page of the record on which the judgment appealed from may be found. The statement in this case makes no reference to any order of the court concerning the matter now under consideration. (2) The order recites that the court heard evidence upon [***9]  the trial of the response to the rule and none of that evidence is incorporated in the record. In such cases this court will presume that the evidence heard was sufficient to support the judgment or order complained of. Craft v. Davidson, 189 Ky. 378, 224 S.W. 1082, and cases referred to. (3) If the above two objections were eliminated we would then be without jurisdiction to consider this matter, since the only amount involved is $ 150.00, with no statutory lien upon real estate involved. The effort to obtain an appropriation of the money sought to be reached by the rule ordered by the court has no connection with the lien attempted to be asserted on the lot in Mt. Vernon. The relief sought in the one case is wholly separate and distinct from that sought in the other, although each of them is involved in the same action. It, therefore, seems clear that we are without authority to review or consider this branch of the case.

Wherefore the judgment is affirmed.

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