City National Bank v. Anderson

Opinion of the Court by William Rogers Clay, Commissioner Reversing. The City National Bank of Cairo, Illinois, and the Scudder-Gale Grocery Company .recovered judgments against W. A. Anderson. Executions were issued on the judgments and returned, “No property found.” Thereupon, the bank and the grocery company brought suits to set aside a conveyance made by W. A. Anderson to his wife, Mellie Anderson, in the year 1906, and to subject to the payment of their debts the property therein conveyed, as well as other property alleged to belong to W. A. Anderson, all of which was attached in the action. The petitions were dismissed and plaintiffs appeal. The conveyance from W. A. Anderson to his wife is attacked on,the ground that it was made to defraud his creditors. The Andersons claim that the conveyance •was made to discharge an indebtedness due from W. A. Anderson to his wife. If this be true, the conveyance was a mere preference, and under section 1911, Kentucky Statutes, could not be attacked by other creditors more than six months after the deed was lodged for record. Granberry, et al. v. Pierce, et al., 151 Ky. 794, 152 S. W. 938. Both Mr. and Mrs. Anderson testified that he was indebted to her for money which she had earned as a teacher and had turned over to him, and no direct evidence, nor facts, nor circumstances tending to show the contrary appear in the record. That being true, we see no reason to disturb the judgment so far as it affects the tract of land covered by the conveyance in question. [78] As to the five acres adjoining the tract conveyed by Anderson to his wife, a different question is presented. The claim of homestead cannot be sustained for the reason that the debts sued on were contracted prior to the purchase of that tract. Section 1702, Kentucky Statutes ; Moseley v. Bevins, 91 Ky. 260. Anderson testified that he had purchased the land from his mother by, deed which was not to be recorded until the land was paid for. The purchase price was $500.00, and at the time he testified he owed this sum, together with interest amounting to about $100.00. After this development, the bank filed an amended petition alleging that Mrs. Amanda M. Anderson, mother of W. A. Anderson, was asserting an interest in the five acres in question, but that in reality she had no interest therein. It then asked that she be made a party and be required to answer and set up whatever interest she had in the property. Thereupon, a summons was issued and served on her, but she made no defense. Under these circumstances, the allegation of the amended petition that she had no interest in the property stands confessed, and the bank should have been adjudged a first lien on the property, so far as Mrs. Anderson is concerned. The grocery company is also entitled to a lien on the property; but whether its lien is superior to the lien of Mrs. Anderson and on an equality with the lien of the bank, or is inferior to Mrs. Anderson’s lien and therefore inferior to the bank’s lien, are questions which cannot now be decided. On the return of the case, the grocery company, if. it desires, will make Mrs. Anderson a party, and the chancellor after determining the questions of priority will order the deed from Mrs. Amanda M. Anderson to the defendant, W. A. Anderson, recorded, and will direct a sale of the property to pay the liens adjudged thereon. Judgment reversed and cause remanded for proceedings consistent with this opinion.