Sievers, et al. v. Martin, et al., Pulaski, 1904

SIEVERS et al. v. MARTIN et al.

COURT OF APPEALS OF KENTUCKY

82 S.W. 631; 1904 Ky. LEXIS 455; 26 Ky. L. Rptr. 904

November 8, 1904, Decided

PRIOR HISTORY:  [**1] 

Appeal from Circuit Court, Pulaski County. "Not to be officially reported." Action by one Martin and another against L. B. Sievers and others. From a Judgment for plaintiffs, defendants appeal.

DISPOSITION: Affirmed.

COUNSEL: O. H. Waddie, for appellants.

Brown & Brown and Denton & Robinson, for appellees.

JUDGES: NUNN, J.

OPINION BY: NUNN

OPINION

EDITOR'S NOTE: THE ORIGINAL SOURCE CONTAINED ILLEGIBLE WORDS AND/OR MISSING TEXT.

 [*631]  NUNN, J. Appellant L. B. Sievers became indebted to appellees in sum of about $80. A judgment was obtained on this claim by appellees in the Pulaski quarterly court in the spring of the year 1900. They caused an execution to be issued upon this judgment, which was returned by the sheriff, indorsed "No property found." The appellees brought this action in the month of August, 1902, against appellant L. B. Sievers, Nathaniel Hicks, and his wife, Sarah Hicks. By amended petition appellant Martha E. Sievers, wife of appellant L. B. Sievers, and one W. W. Wilson, were made parties defendants to the action. The purpose of the action was to set aside a conveyance of a small piece of real estate made to Nathaniel Hicks and wife, dated November 10,  [**2] 1900, for the recited consideration of $165, $10 cash, and the balance, $155, payable on the 15th of January, 1901. Appellees alleged that this conveyance was made without any consideration, and for the purpose of cheating and defrauding the creditors of appellant L. B. Sievers. Hicks and wife answered, stating that they bad bought the property in good faith, and the deed recited the true consideration, and they still owed the note of $155 which they at date of deed executed to appellant Martha E. Sievers, except  [*632]  they were entitled to a credit of about $49 for rent of the property, the same having been possessed and used by Sievers and wife; that, If Sievers and wife made the sale to them for the purpose of cheating and defrauding appellees or any other creditor, they were not at the time aware of the fact Appellants answered, and denied that the sale and conveyance was without consideration, but averred that the sale was made in good faith and for a valuable consideration, to wit, $165, and that the note for $155 was made payable to appellant Martha E. Sievers in part payment of what her husband owed her, and without any purpose to cheat or defraud appellees or any one. The issues  [**3] were completed, the proof taken by deposition, and upon the trial the court adjudged that the deed was fraudulent and void as to appellees, and adjudged them a lien upon the property by virtue of their attachment which they obtained in their action. The court, by a subsequent order, directed that Hicks and wife might be permitted to pay appellees' debt, interest, and costs, to wit, $105, and pay the balance to appellant Martha E. Sievers, and retain the property under their purchase. From these judgments appellants appeal.

P1 See Pleading, vol. 39, Cent. Dig.§ 81.

It appears that the legal title to this property was In the defendant W. W. Wilson, who had sold and received the purchase price, but had never conveyed it. He gave his deposition, and stated that he had long since received the purchase price, and on several occasions had proposed to convey the property, but appellant L. B. Sievers on each occasion would defer the matter, stating in substance he was not ready for the deed, but would attend to it later. It also appears that, at the date of the deed from appellants to Hicks and wife, appellant L. B. Sievers [ILLEGIBLE TEXT] Hickses were Insolvent Hicks took the [ILLEGIBLE TEXT]  [**4] of the bankrupt law soon thereafter [ILLEGIBLE TEXT] of this property was made in his schedule; the deed was not recorded until after Hicks obtained his discharge in bankruptcy. It further appears that this note of $155 was never delivered to the recited payee, Martha E. Sievers. She stated that her husband held it as her agent but it appears that her alleged agent, without her knowledge or consent, transferred and deposited this note with one Chris. Tartar, as collateral. As before stated, appellants alleged in their answer that the sale of this property to Hicks and wife was made in good faith and for a valuable consideration, and without any purpose to cheat or defraud any person; and the note for the purchase price was made payable to Martha E. Sievers, and she accepted same in part satisfaction of what her husband owed her for borrowed money. Appellants, without objection, gave their depositions, which in substance sustained their answer; but also stated that within a few months after the deed was made, and before it was recorded, all parties to it agreed to and did rescind the trade, and the deed was returned by Hicks to appellants, and Mrs. Sievers was to take and hold the land  [**5] as her property in place of the note; and stated that Hicks, after this by fraudulent means again obtained the deed, and had it recorded without their knowledge or consent. Appellants contend that in view of this evidence the lower court erred in adjudging this property to Hicks, subject to appellees' attachment lien. This evidence was in conflict with their answer. They certainly should not be permitted to disprove or contradict what they admitted and stated in their answer.

The appellants and Hicks stated in their pleadings that the trade was in good faith, and that the Hickses were the owners of the property, and denied any intent to cheat and defraud. And appellants also stated that the note of $155 was the property of Martha E. Sievers, and that she was entitled to collect from Hicks this note. These pleadings were filed long after appellants in their testimony stated the trade had been rescinded. If what appellants alleged in their pleadings was a mistake, and their statements in their depositions true, then they should have corrected their pleadings by an amendment, and, as they did not do so, they have no reason to complain at the action of the lower court. We are of the opinion,  [**6] upon consideration of all the facts and circumstances proven, that this sale and conveyance by appellants to Hicks and wife was fraudulent, and the court did not err In sustaining appellees' attachment and enforcing their lien on the property.

Whereupon the Judgment of the lower court is affirmed.