Savings Bank v. McAllister's Adm'r

•JUDGE HOLT delivered the opinion oe the court. Jonas EL Rhorer conveyed his property, on January 16, 1880, to the appellant, the Savings Bank of Louisville, and it subsequently conveyed its property, including that derived from Rhorer, to Stephen E. Jones in trust, for the payment of its debts. The appellee, being a judgment creditor of Rhorer, brought this action on July 10, 1880, under article '2, chapter 44,' of the General Statutes, or what is •commonly known as the Act of 1856, for the purpose of having the deed from Rhorer to the bank •declared to operate as a general- assignment for the benefit of all his creditors. It was beyond question a preference within the statute,• which provides that such a transfer “shall be subject to the control of courts of equity, upon the petition of any person interested, filed within •six months after the mortgage or transfer is legally lodged for record; * * * * but it shall not be ■necessary to make any persons defendants except the debtor and the transferee.” The action was brought within the limited time; •but while the debtor, Rhorer, and Jones, as the assignee of the bank, were made defendants in the ■original petition, the bank was not made a defend.ant until an amended petition was filed for this purpose, on March 28, 1881, and then more than the [152] statutory period named had expired. The question presented, therefore, is, whether the failure to make-the bank a defendant within the six months named defeats the action, notwithstanding the fact that the' debtor and the assignee in trust of his transferee were not only parties to the action, but duly summoned as such within the time named. It is' urged, in behalf of the appellee, that while-under the general limitation law an action must be commenced within a certain period, ’which, under the Code, is' not done until' not only a petition is filed but a summons issued upon it, that yet the> statute in question only requires that a petition be' filed Within the six months in order to save the-plaintiff’s right; and that, even if this be not so, yet that it is certainly immaterial when the summons is issued, or the warning order made against the transferee, provided some necessary defendant is. summoned within said period. With this view we-do not concur. It is unreasonable to suppose that, the Legislature intended to permit a plaintiff to preserve his right under the statute as against the-transferee, and to affect -the latter’s rights, without giving him proper notice within the limited time of the pendency of the action; and, as held by this-court in the case of Cecil v. Sowards, &c., 10 Bush, 96, the act, being of a date subsequent to the adoption of the Code, should be construed in connection with it; and it is, therefore, not only necessary to-file the petition, but to sue out a summons against the transferee within the time fixed by the statute. The bank had, however, by the assignment to Jones; [153] as trustee, placed Mm in its place as to its property, including that conveyed to it by Rborer, and as to. all remedies against it. He had the possession and held the legal title to it, the appellant having only-a remote or uncertain equity in it; and, while owing-to this equity, it was a proper and necessary party to the action, as was said by this court upon the-former appeal of this case (80 Ky., 684), yet, as the^ assignee was vested with both the title and possession, and was legally the representative of Rhoreras to the property, both reason and a reasonable ■■ construction of the statute lead to the conclusion that the right to attack the conveyance by Rhorerwas saved by the filing of the petition against and service of summons upon him and the assignee of' the bank within six months from its execution. The bank had not only parted with the title, but. all right to represent and control the property as. to actions relating to it; and the object of the statute in requiring that the transferee shall be made a. defendant, is to enable the court to reach the property and divest him of the possession and title; and if they have vested in another, by an assignment in trust by the immediate transferee of the debtor, then the assignee and debtor are the necessary parties, against whom the petition must be filed and summons issued within the statutory period, in order to. create a lis pendens within the meaning of the statute, and save the right to attack the transfer of' the-debtor. The court must have the debtor within its1, power, in order to administer on his estate; and also-the one holding the title and in possession of it, in. [154] • order to divest Mm of them. TMs conclusion is strengthened by the fact, that although this right is a statutory one, yet the purpose of the statute is equitable; and it should, therefore, as was held in the cáse of Terrill, &c., v. Jennings, &c., 1 Met., ■450, be liberally construed in order to effect the legislative intention. Judgment affirmed.