October 20, 2012

Southwood v. Southwood, Wayne, 1906



SOUTHWOOD et al. v. SOUTHWOOD et al.


98 S.W. 304; 1906 Ky. LEXIS 311; 30 Ky. L. Rptr. 307

December 12, 1906, Decided

Appeal from Circuit Court, Wayne County.
"Not to be officially reported."
Action by J. F. Southwood and others against B. R. Southwood and others. From a judgment in favor of plaintiffs, defendants appeal.

COUNSEL: Sanders & Wallace and O. H. Waddle & Son, for appellants.

Harrison & Harrison, Sharp & Siler, J. N. Sharp, and W. R. Cress, for appellees.




 [*304]  LASSING, J. John F. Southwood and William Southwood instituted their suit in the Wayne circuit court against B. R. Southwood  [*305]  and others, as the children and heirs at law of William Southwood. deceased, seeking a sale of five tracts of land of which William Southwood died seised and possessed, for the purpose of dividing the proceeds thereof among his said children according to their interest therein. The defendants B. R. Southwood and C. F. Southwood filed their separate answers and counterclaims, which they sought to have made a cross-petition against the other parties to said suit. In this answer they deny that William Southwood died the owner or in possession of all the lands described in the petition, but allege that on the 2d day of February,  [**2] 1895, he sold off portions of his lands to his two sons, H. E. Southwood and C. F. Southwood, to C. F. Southwood some 250 acres of land, and to H. E. Southwood more than 500 acres, and put them in possession thereof, and that they, and those under whom defendants claim, have been in the possession of said land ever since, and are now in the possession thereof, so that, at the time of his death, he remained the owner of but about 150 acres, upon which his home was situated, and that, thereafter, H. E. Southwood sold and conveyed his lands to B. R. Southwood. They filed with their answers a title bond from their father, William Southwood, to each for the land so purchased by him, and asked to have their title thereto perfected and quieted, and that the heirs of William Southwood, deceased, be required to convey the land described in said title bonds to the respective owners thereof. To each of these answers, plaintiffs filed a reply, in which they allege that the sales set up in the title bonds were executed without consideration, and for the fraudulent purpose of defeating the creditors of William Southwood, deceased, in the collection of claims which they held against him ; that the  [**3] title bonds were executed on Sunday, and that the holders thereof, to wit. H. E. Southwood, and B. R. Southwood claiming under him, and C. F. Southwood, had held and occupied the land embraced in their respective title bonds as tenants of their father, and not as owners and holders thereof. The affirmative matter in each reply was traversed of record by agreement. On the issues thus joined, proof was taken, and, upon final hearing, the court adjudged that the plaintiffs and defendants were the owners of said land, as the heirs at law of William Southwood, deceased, and adjudged that all of said land be sold, and, after the payment of costs and any debts against the estate of the decedent, the proceeds thereof divided among the heirs at law of William Southwood, deceased, according to their interest therein, and dismissed the counterclaim and cross-petition of the defendants B. R. Southwood and C. F. Southwood. From so much of the judgment as adjudged William Southwood, deceased, the owner of the two tracts of land described in the title bonds held by B. R. Southwood and C. F. Southwood, the defendants B. R. Southwood and C. F. Southwood appeal.

We do not deem it necessary to discuss  [**4] bus one question raised upon this appeal, and that is, did the trial court err in adjudging William Southwood, deceased, to be the owner of the two tracts of land described in the title bonds set up in the pleadings herein? The appellees allege in their petition that William Southwood died the owner of, and in possession of, the lands described in the petition. The appellants answered, claiming by purchase the two tracts of land described in the petition, covering in the aggregate more than 750 acres of land, and filed with their answers the title bonds which their father had executed to them for said land. Appellees replied, and, in order to avoid the force and effect of the title bonds and defeat the claim of their brothers to the land described therein, alleged that their father, William Southwood, for the purpose of cheating, defrauding, hindering, and delaying his creditors in the collection of their debts, had executed the bonds in question, and that there was, in fact, no consideration for the execution thereof, and that they were executed at a much later date than they bore, and, on this showing, they asked the aid of the chancellor to relieve the estate of their father from  [**5] the force and effect of these bonds. Undoubtedly, if William Southwood himself were living, and was seeking the relief herein sought by his sons, no court of equity would lend him its aid or support. He has divested himself of the title to this land for a fraudulent purpose, and, having accomplished that purpose, equity would not relieve him to the extent of assisting him to have canceled or set aside the bonds which he executed to his two sons. His children have no greater right in his estate or property than he himself had. They stand in no better position than he himself did while living. They are not seeking in this suit to recover this estate for the purpose of paying the debts of their deceased father, but the prayer of their petition is that it may be recovered and sold for the purpose of partitioning same and dividing the proceeds thereof among his said children, the appellees and appellants. In the case of Harper v. Harper, 85 Ky. 169, 3 S. W. 5, 7 Am. St. Rep. 583, an old, weak-minded lady conveyed her property to a relative who had frightened her into the belief that she was about to be sued for libel, and, although in this case the deed was rescinded, on the ground that  [**6] the weak-minded vendor was the victim, rather than the accomplice, of the vendee, the court clearly recognized the rule that, if one undertakes to defeat a claim asserted against him, or that is about to be asserted against him, by conveying his property to another, he cannot afterwards, through a court of equity, recover that which he fraudulently conveyed. And in the case of Carson and Summerville's  [*306]  Guardian v. Beliles, 89 S. W. 208, 28 Ky. Law Rep. 272, 1 L. R. A. (N. S.) 1007, in a most exhaustive opinion, in which the decisions of not only this court, but the courts of last resort of many of our sister states, are reviewed upon this question, this court held that, where one, for a fraudulent purpose, conveys his property to another, and thereafter seeks to recover it and have the conveyance set aside, the aid of the chancellor will be denied him, and he will be left without remedy. "'He who doeth fraud may not borrow the land of the chancellor to draw equity from a fountain his own hath polluted.' Believing it to be contrary to public policy that one should undertake to defeat a claim, about to be asserted against him through the machinery of the law, by conveying his property,  [**7] upon a secret trust, with a false statement that it was made for a valuable consideration, we think the chancellor should have dismissed the bill which sought to recover the property so conveyed by appellee." This case is very much like the case at bar. William Southwood, deceased, conveyed two tracts of land to two of his sons for the fraudulent purpose of hindering and defeating his creditors in the collection of a debt which they held against him. Under the decision of this court, he could not compel the cancellation of the title bonds and secure a reconveyance of the land to himself were he living and attempting to do so, and his children occupy no better position as regards this transaction than he himself would.

The chancellor should have dismissed so much of the petition as sought to recover the two tracts of land described in the title bonds set up therein, and should have dismissed the answers, cross-petitions, and counterclaims of the defendants B. R. Southwood and C. F. Southwood, and this Judgment is reversed and cause remanded, with instructions so to do.

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