Norfleet's Adm'r v. Logan, Pulaski, 1900

NORFLEET'S ADM'R v. LOGAN.

COURT OF APPEALS OF KENTUCKY

54 S.W. 713; 1900 Ky. LEXIS 384; 21 Ky. L. Rptr. 1200

January 6, 1900, Decided

PRIOR HISTORY:  [**1] Appeal from circuit court, Pulaski county.

DISPOSITION: Reversed.

COUNSEL: James Denton, for appellant.

O. H. Waddle, for appellee.

JUDGES: BURNAM, J.

OPINION BY: BURNAM

OPINION

 [*713]  BURNAM, J. - This action was instituted by appellee against W. H. Weddle, F. E. Nelson, F. M. Minxs, and D. P. Weddle, as partners doing business under the firm name of the Nancy Mill Company, and against L. B. Weddle, as administrator of Samuel D. Norfleet, deceased, Nancy Norfleet, his widow, and their six infant children, to recover a personal judgment on a debt of $225 due to him by the Nancy Mill Company. He alleged that all of the members of this firm were insolvent, but that the defendant Minxs, after the creation of the debt sued on, and with the intent to defraud the creditors of the Nancy Mill Company, did, without valuable consideration therefor, convey by deed to Samuel D. Norfleet, deceased, a tract of 37 acres of land, for the nominal consideration of $600, paid cash in hand; that this consideration was inserted in the deed for the sole purpose of misleading  [**2] the creditors Of Minxs; that Norfleet did not in fact pay any consideration therefor, and knew at the time he accepted the conveyance that it was made to him for the purpose of defrauding the creditors of Minxs and of the mill company. Appellee further alleged that all of the infant defendants were under 14 years of age, and had no statutory guardian. Appellee at the same time sued out an attachment, which he sought to have levied upon the tract of land conveyed to Norfleet, upon the ground that Minxs had become a nonresident of the state. No defense was made by the Nancy Mill Company, but L. B. Weddle, the administrator of Samuel D. Norfleet, deceased, and Nancy Norfleet, the widow, filed their joint answer, in which they denied that the conveyance was made to decedent without valuable consideration, or that the conveyance was accepted by him with the knowledge of its fraudulent character. No guardian ad litem was appointed for the infant defendants, and no defense was made for them in the proceeding. Upon final submission it was adjudged by the court that appellee's attachment be sustained, and the conveyance from Minxs to Norfleet set aside, and appellee was adjudged a lien by virtue  [**3] of his attachment upon enough of the tract of land to pay his debt; and pursuant to this judgment the master commissioner  [*714]  sold the entire boundary, and appellee became the purchaser thereof at a price considerably less than the amount of his debt. We are asked to reverse this judgment for a number of alleged errors.

First it is claimed that the judgment should be set aside because the return of the officer who levied the attachment fails to specifically describe the property levied upon thereunder. The return made by him is as follows: "Executed by delivering a true copy to W. H. Etham, party residing upon said property." The petition specifically describes the tract of land sought to be subjected, and on the filing of the petition an order of general attachment was issued against the property of the defendant Minxs. Section 203 of the Civil Code of Practice provides that an order of attachment shall be executed by the sheriff upon real property "by leaving with the occupant thereof, or, if there be no occupant, in a conspicuous place thereon, a copy of the order"; and we are of the opinion that the return of the levy indorsed upon the attachment was a sufficient compliance with the  [**4] requirements of the Code.

The second ground of complaint is that the court erred in rendering a judgment for a sale of the real estate without the appointment of a guardian ad litem to represent the infant defendants. Section 516 of the Civil Code provides that "a misprision of the clerk shall not be ground for an appeal, until the same shall have been presented and acted upon in the circuit court." And subsection 2 of section 517 provides that "it shall be deemed a clerical misprision to render judgment against an infant—excepting married women—or persons of unsound mind, until a defense or report is filed pursuant to the provisions" of section 36, subsec. 3. And it has been held by this court in a number of cases that judgment rendered against infant defendants without the appointment of a guardian ad litem was erroneous only, and not void; but under subsection 2 of section 517 such infants might obtain relief by motion in the court below at any time during infancy, or within 12 months after arriving at full age. The infants in this case are not before the court on this appeal, and, while it was clearly erroneous to have rendered a judgment directing a sale of the land in contest  [**5] without the appointment and report of a guardian ad litem, it is no ground for a reversal of the judgment complained of.

The third ground relied on by appellant is that the testimony in the case is insufficient to sustain the judgment of the court below. The only evidence in the case is the depositions of the defendant F. M. Minxs and one J. S. Weddle, both of which were taken by appellee. Minxs testifies that he sold the land to Norfleet in consideration of $600, but that by the terms of his contract he was to build another house on the premises, and was to finish the one already there; that he failed to build the second house, and Norfleet only paid him about the sum of $350 on the purchase, most of which was in cash. The witness Weddle testifies on this point that Minxs wanted to borrow $90 or $100 to pay a security debt, and proposed to make him safe with the tract of land in dispute; that he told Minxs that he did not have the money himself, but advised him to send for Mr. Norfleet, as he could get the money from him; that Minxs afterwards told him that he got the money from Norfleet, and transferred the land to him to make him safe. Neither of these depositions was competent evidence  [**6] against the estate of decedent, under the provisions of subsection 2 of section 606 of the Code, as Minxs details a transaction had by him with Norfleet after his death, while Weddle's testimony is confined to a conversation had with Minxs, not in the presence of Norfleet, and which but remotely bears upon the question at issue here. But no exception seems to have been taken to this evidence; and, if we treat it as competent, we are of the opinion that it is wholly insufficient to support the judgment, as it fails to establish any fraud or want of consideration for the deed made to Norfleet. Giving full credence to the statement of Minxs, he has confessedly received the full consideration for his property,—in fact, more than twice as much as it brought at the commissioner's sale, made under the judgment rendered in the case. For reasons indicated, the judgment is reversed, and the cause remanded for proceedings consistent herewith.