19 Ky.L.Rptr. 1049
Court of Appeals of Kentucky.
KELLEY v. BLACK et al.
Oct. 21, 1897.
ACTION: Affirmed.
Appeal from circuit court, Knox county. "Not to be officially reported." Action in equity by John A. Black against the Barbourville Land & Improvement Company and S. F. Kelley to enforce a vendor's lien on land. Judgment dismissing cross petition filed by S. F. Kelley, asking for the appointment of a receiver, and S. F. Kelley appeals. WHITE, J. In 1890 the corporation known as the Barbourville Land & Improvement Company was organized, and in April of that year purchased of appellant, S. F. Kelley, a tract of land, and, as part of the purchase price, executed to said appellant two notes, for $1,616.86 each, due and payable in 6 and 12 months, and took a deed for the land, in which a lien was reserved to pay these two notes. Afterwards appellant sold and assigned the first of these notes to John A. Black, and the other note to the First National Bank of London, Ky. At the maturity of said first note, and it not having been paid, Black brought suit in equity to collect same, and enforce his lien, and in that action the First National Bank of London came in, and asked to be made a party, and to have their lien also enforced. This petition also included appellant, S. F. Kelley, as a defendant. These two actions proceeded to judgment against the land and improvement company, and the lien was enforced, and the land sold by the master commissioner, and brought $1,600, which sum was paid to said Black and the bank in equal proportions, thus leaving a large balance unpaid on each note. Afterwards, by an amendment by Black, the appellant, Kelley, was made a party, and, upon pleadings, a judgment by default was rendered in each case against appellant, Kelley, for the balance unpaid by the sale of the land, in favor of each assignee, Black and the First National Bank of London, and upon these two judgments execution was issued against the land company and Kelley, and returned by the sheriff, "No property found." The appellant, S. F. Kelley, then filed an answer and cross petition in these actions in equity, against the said land and improvement company, in which is alleged all the above facts, and that the said land and improvement company had fraudulently, and with the intent to defraud and delay its creditors, made an assignment of all its assets to one McAlford and W. J. Caudell, and that said assignees had failed and refused to collect or to try to collect the unpaid subscriptions to the capital stock of said company; and also alleged specifically the names of the various parties who had subscribed for stock, together with the amount each had agreed to take, and the amount each party had paid on said subscription, and the amount still due; and appellant asked that the court appoint a receiver to take charge of the affairs of said corporation, and that said receiver be instructed by the court to proceed to collect the unpaid subscriptions to the capital stock, and that the affairs of said corporation be finally settled, and its debts, including the ones due Black and the bank, first given to appellant, and assigned by him. To this answer and cross petition a demurrer was sustained, and the same was amended, and again a demurrer was sustained; and, appellant failing to plead further, his cross petition was dismissed, and from that judgment this appeal is prosecuted. Neither in the original cross petition of appellant, nor in either of the amendments, are stated facts showing that appellant is a creditor of said corporation, or that, by reason of the notes assigned by him, he will become a creditor of said corporation, or that he has been in any way compelled to pay a debt of said corporation. On the contrary, he alleges that said corporation is solvent, and specifically alleges that many parties named are indebted to said land and improvement company, which, if true, will show that he will never have to pay the debt of this company by reason of that assignment of the notes. In our opinion, it is necessary for appellant to allege such a state of facts showing him to be a creditor of said corporation before he can maintain his cross action. As he failed to do so, the demurrer was properly sustained. Finding no error, the judgment dismissing appellant's cross petition is affirmed. Ky.App. 1897. KELLEY v. BLACK et al. 42 S.W. 738, 19 Ky.L.Rptr. 1049

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