22 Ky.L.Rptr. 1369, 109 Ky. 711
Court of Appeals of Kentucky.
Feb. 1, 1901.

Appeal from circuit court, Bell county.
"To be officially reported."
Action by J. M. Colson, by next friend, against James Sparks and another, to enjoin the execution of a writ of possession.
Judgment for plaintiff, and defendant James Sparks appeals.

It appears from this proceeding that W. G. Colson was possessed of considerable property in Bell county, Ky., from 1883 to about 1890, some by inheritance and some by purchase. He had married a daughter of J. M. Wheeler, who also owned an estate of some $40,000. While in solvent circumstances, Colson purchased a tract of land, for speculation apparently, situated in Bell county, his father-in-law paying one-third the consideration for it, and Colson the remainder, the title to which was taken to Colson under an agreement with the father-in-law and the wife that she was to own one-third of the land and its proceeds. It is not shown that Mrs. Colson ever knew that her husband took title to this tract of land to himself alone, or that she consented that he might do so. The proven agreement was that she was to own one-third of the land and its proceeds. Subsequently Colson sold this land and other property to the Pine Mountain Iron & Coal Company, taking in exchange about $1,300 in cash, and notes to himself for $5,000, and agreeing to take the two lots in controversy in this suit, being lots Nos. 10 and 11 of block 13, Pine Mountain Iron & Coal Company's addition to the town of Pineville. This was during the boom period, when values of all properties in that section were more or less inflated, and of town lots especially so. The sale of the land known as the "Collins Tract," in which Mrs. Colson or her father had the interest stated, was made in 1890, during her lifetime (she having died in August, 1890), but was not conveyed until January, 1891. Then it seems that Colson, in attempted fulfillment of his agreement with his wife and the father-in-law, started to have the deeds to the Pineville lots made to Wheeler, but at Wheeler's direction caused the deed to be made to Colson's infant son, the appellee, J. M. Colson, son of his deceased wife. At that time Colson seems to have become extensively involved in debt, and was striving for time as against his creditors, resorting to many methods familiar in such transactions. Appellant, Sparks, subsequently procured a judgment against W. G. Colson for $97.93, and some $13 costs, on a liability antecedent to the deed to J. M. Colson, and caused the execution to be levied on the two lots, and became the purchaser at the sheriff's sale at the amount of his debt and costs. The lots were appraised at $1,000 ($500 each), which is shown to have been their fair value. Appellee, the infant, by his next friend, brought this action against the creditor and the sheriff, seeking to enjoin the execution of the writ of possession, the infant not having been a party to the proceeding under which the lots were attempted to be sold. The circuit court upheld the title of the infant, and perpetuated the injunction.

The principal questions for our consideration are: (1) Was the agreement and transaction between the debtor, W. G. Colson, and his wife and father-in-law, such as could have been enforced against Colson? And (2) is that transaction, and Colson's attempt to execute that agreement, in violation of appellant's rights as Colson's creditor? Even in the absence of the numerous high authorities on the subject, we would have no hesitancy in adopting the views herein expressed. These authorities include many examined, but not cited. Those from this court, covering a long period, and the services of many of its most illustrious members, are deemed sufficient. The facts above stated are proven beyond question; indeed, are proved by witnesses introduced by appellant. There is no evidence to the contrary. The usual difficulty in applying the principles of this decision to cases attempted to be brought within their operation is the proof of the consideration moving the conveyance, and the question of fraud on the part of the debtor. The fact that the man is largely in debt, insolvent, and makes a preferential conveyance to his wife, are circumstances calculated to arouse suspicion, bringing seriously into question the truthfulness of the alleged agreement. An examination of the cases where the principles of this decision have been denied will show generally that the proof was not satisfactory, or tended to show positive fraud, or that the personalty of the wife had been reduced to possession by the husband without any agreement, and that the agreement for settlement on her and the settlement were made after he became insolvent, and many years after he had received her property. If this were an action by Mrs. Colson against her husband to compel the execution of the contract between them, we do not doubt that the chancellor would be amply justified in decreeing its specific performance. He agreed with her and her father that, if he was given the possession of this $1,000 which the father held for her, he would invest it in land, and that, to the extent her money paid for it, it should be her land, and, when sold, she should have a corresponding right to the proceeds. This was a commendable and lawful contract, with sufficient valuable consideration to uphold it. Having received the consideration on the terms named, he was morally and legally bound to convey to her the agreed interest in the land, or, in event of its sale, an equal interest in its proceeds. The proceeds of the sale included the lots in controversy, and, as the husband took to himself the cash and cash notes received for the land, leaving only the lots of no greater value than her interest in the original tract, he would have been compelled at her suit to have conveyed them to her. That he has voluntarily done what in good conscience and under the law he was bound to do can detract nothing from the act.

After the issue in this case had been formed, demurrers and motions to strike from pleadings having been filed and acted on by the court (whose rulings in determining them we think were correct), appellant filed his affidavit with the clerk of the court attempting to show cause against the regular judge's presiding in the case, and moved the court that an election be held for a special judge to try this case. The court overruled the motion. The affidavit stated that the affiant (appellant) had learned since the issues in the case were joined that the Honorable M. J. Moss, judge of the court, was related to some of the parties to the action, and proceeded to state the relationship. The affiant says that the judge's wife's brother married a sister of the infant plaintiff's father, that the next friend suing for the infant plaintiff had married said infant's cousin, and that the judge's brother had married a sister of the plaintiff's father. We are of the opinion that this relationship, if it can be termed more than a "visiting" one, is too remote to have in any probability biased the judgment of the judge, or even a juror.

The next point made in the affidavit was that the judge's brother-in-law was surety on a supersedeas bond executed to stay proceedings on the judgment rendered in that court awarding the possession of the lots in controversy to the affiant, and that the decision of this case would determine the liability of the parties to that bond. The affiant was in error, in our opinion, as to the legal effect of the supersedeas bond in question. That bond had been executed in another proceeding. The appeal had been prosecuted and dismissed. The liability of the parties to the bond thereby became fixed, and in no wise could the determination of this suit affect it.

The affidavit further stated that the judge and his brother-in-law, J. S. Bingham, and the infant plaintiff's father, W. G. Colson, were, and had always been, on the most intimate terms (of friendship, it is presumed), and engaged in many business transactions together, and "that said Moss has a decided partiality for co-defendant, W. G. Colson, and the plaintiff, J. M. Colson." In the nature of our judiciary system, the judges are selected from lawyers resident of the district, and who have been practicing their profession for at least eight years. It is quite natural to suppose that in every instance they have been on intimate terms of friendship with many of their fellow citizens, and engaged in the past in business enterprises with them. The fact of their election may be held to indicate cordial, friendly sentiments towards them of quite a number--indeed, of the majority--of the men of their districts. To hold that such a state of fact would disqualify the judge from acting in some suit wherein some of these parties were remotely or directly interested would be ridiculous. It would at once impeach the high character of our circuit judiciary, so long established, and so rarely questioned.

The affidavit further proceeds to say that "the judge is personally hostile to this affiant herein." But it is not enough to merely assert the fact of personal hostility or partiality. He must state the facts which he alleges constitute the state of feeling complained of. We have held that the truthfulness of the facts stated cannot be questioned by the judge; therefore it is all the more important that the facts, and not the litigant's conclusions or suspicions, be set forth, that this court may have an opportunity of testing their sufficiency if the trial judge should hold them insufficient.

We conclude that the circuit judge rightly declined to vacate the bench in this case. We have examined this record with much care, and fail to discover wherein appellant's rights have in the slightest degree been prejudiced by the lower court's rulings, or the judgment appealed from. The judgment is therefore affirmed.

Ky.App. 1901.
60 S.W. 540, 22 Ky.L.Rptr. 1369, 109 Ky. 711


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