22 Ky.L.Rptr. 277, 108 Ky. 602
Court of Appeals of Kentucky.
June 1, 1900.
ACTION: Affirmed.

Appeal from circuit court, Knox county.
"To be officially reported."
Action by Nannie Y. Trosper against Joel Campbell and G. M. Campbell to set aside a deed.
Judgment for plaintiff, and defendants appeal.

Appellee, Nannie Y. Trosper, and J. H. Campbell were married in the year 1878. Four children were born to them, --all girls. In October, 1895, appellee filed suit for divorce from her husband; he having taken up with a woman by the name of Burrilla Trosper, whom he had brought to his house, and by whom he had a bastard child, born shortly before the bringing of the suit. He had driven his wife and children away from home, and was living with Burrilla. He had a tract of land worth about $1,000; four horses worth, perhaps, $300; some stock, farming utensils, and household property. Appellee prayed in her petition in that case alimony as well as a divorce. Issue was joined, and the case was tried August 13, 1896, when a final judgment was rendered, divorcing appellee from J. H. Campbell, and allowing her $500 as alimony, --$50 payable October 1, 1896, $50 January 1, 1897, and the remainder in four equal installments on the 1st day of October, 1897, 1898, 1899, and 1900; also, $200 for her attorney's fee, to be taxed as costs, and the custody of the two older children. She had obtained an attachment upon his property, but this was discharged. By a subsequent judgment the custody of the two younger children was committed to her. Campbell paid the $50 due October 1, 1896; also, $43 of the $50 due January 1, 1897. On March 3, 1897, he made a deed to appellants, Joel Campbell and G. M. Campbell, by which, in consideration, as recited therein, of the sum of $800 cash in hand paid, the receipt of which he thereby acknowledged, he conveyed to them his farm. He failed to pay anything further on the allowance to appellee, and she on March 1, 1898, after exhausting other remedies, filed this action to set aside the deed made by him to appellants; alleging that she had a prior lien upon the land, and that the deed was fraudulent, and made with the fraudulent intention to cheat, hinder, and delay her in the collection of her debt. Appellants denied the fraud, but on final hearing the court below subjected the land to appellee's claim, adjudging the deed void as to her.

The determination of the case requires a construction of the following provisions of the Kentucky Statutes: "If the wife have not sufficient estate of her own, she may on divorce obtained by her, have such allowance out of that of her husband as shall be deemed equitable, and be restored to the name she bore before marriage if she desires it." "Pending an application for divorce or on final judgment, the court may make orders for the care, custody and maintenance of the minor children of the parties. *** But no such order for maintenance of children or allotment in favor of the wife shall divest either party of the fee simple title to real estate." "Sales and conveyances made to a purchaser with notice *** in fraud or hindrance of the right of the wife or child to maintenance shall be void as against them." When, in a divorce case, a sum of money is allowed to the wife as alimony, and ordered to be paid by the husband, he becomes her debtor for the amount; and, on his failure to pay, the collection of the money may be enforced by execution, or such other proceedings as are allowed by law to creditors against their debtors; for such judgment does not devest the husband of title to real estate, but may be discharged by the payment of money. Although, the wife is entitled to such an allowance out of her husband's estate as shall be deemed equitable, and the court, in granting alimony, may by proper orders secure the payment of the amount adjudged out of the husband's estate, still, when he merely makes an allowance to be paid by the husband, without providing for a lien in the judgment on the estate of her husband, only a personal liability is created, and the wife has no lien on any part of his estate. Section 2126 makes void all sales and conveyances, made to a purchaser with notice, in fraud or hindrance of the right of wife or child to maintenance. Appellee was not the wife of J. H. Campbell when the deed in contest was made. She had been divorced from him something like 18 months before, and was only a creditor. She was not then entitled to maintenance by him, and cannot set aside the deed on the ground that it was made in fraud or hindrance of the right of wife to maintenance. But, although her action cannot be maintained under this section, being a creditor she may maintain the action, like any other creditor, under section 1907a, Ky. St.: "That hereafter in this commonwealth it shall be lawful for any party who may be aggrieved thereby, when any real property has been fraudulently conveyed, transferred or mortgaged, to file in a court having jurisdiction of the subject matter, a petition in equity against the parties to such fraudulent transfer, conveyance or mortgage, or their representatives or heirs, alleging therein the facts showing their right of action and alleging such fraud or the facts constituting it and describing such property, and when done a lis pendens shall be created upon the property so described and said suit shall progress and be determined as other suits in equity and as though it had been brought on a return of nulla bona, as has heretofore been required." Appellee's petition conforms to the requirements of this section, and she was, under it, entitled to the relief granted by the court below, if the land was fraudulently conveyed.

The proof in this case leaves no room for doubt that J. H. Campbell made the deed in question with intent to delay, hinder, and defraud appellee. Under section 1906, Ky. St., the deed is therefore void, as to her, unless appellants, the grantees in the deed, are purchasers for valuable consideration, and without notice of the fraudulent intent of their grantor. While their own testimony is to the effect that they bought the land in good faith, and without notice of any fraudulent intent on the part of their grantor, J. H. Campbell, on the whole case we cannot disturb the finding of the chancellor on the facts. While, in an equity action, like this, as has been frequently held by this court, the finding of the chancellor will not be given the effect of a verdict of a jury, still, where the evidence is conflicting, some weight will be given to his finding, and it will not be disturbed unless on the whole case it appears to be contrary to the testimony. While there are expressions in some opinions of this court written some years ago giving more effect than this to the finding of a chancellor in equity cases, these have been time and again disapproved, for the reason that the rule is inapplicable to equity cases, which frequently involve a number of issues, where it is a matter of uncertainty what the chancellor's conclusion on a particular issue of fact is. The real difficulty in most cases is in applying the law to the facts. Equity cases being tried here on the same record as in the court below, the reason for the rule in common-law cases does not exist. This court has therefore, uniformly, for a number of years, adhered to the rule that in equity cases judgment will be given here according to the truth of the matter as it shall appear to the court from the whole record, but that where the proof is conflicting, and on the whole case the mind is left in doubt as to the truth, the chancellor's judgment will not be disturbed.

In this case it appears that J. H. Campbell has continued his illicit relations with the woman Burrilla Trosper, and that another child has been born to them since the divorce from his wife. He and Burrilla continued to occupy the land conveyed by the deed, since it was made, substantially as they did before. A part of it was rented out, but the rent corn was delivered at Burrilla's house. J. H. Campbell worked on the land, cultivating crops, planting things, and treating the place as his home. Appellant Joel Campbell lived seven miles off, and seems to have exercised no control over the property; and the social relations of appellant G. M. Campbell with the woman Burrilla and J. H. Campbell tend strongly to sustain appellee's contention. The evidence leaves no doubt that both of the appellants knew of the separation of J. H. Campbell from his wife, and her judgment against him. They certainly knew that the effect of the deed would be to defeat her claim, and, from his intimacy with them, it is hard to escape the conclusion that the deed was made on the part of all three of them for the purpose of defeating her judgment, under the undisputed evidence as to the manner in which the land has been held and used by J. H. Campbell and Burrilla since the deed was made.

It appears from the record that when the deed was made there was a mortgage on the land, in favor of J. H. Campbell's attorneys in the divorce case, and several others, for something like $450, which was then released. Appellants testify that the money they paid Campbell for the land was used to extinguish this mortgage, and it is insisted for them that they should, in any event, have been substituted to the rights of the mortgagees. But this was not pleaded, and it does not seem proper to give such relief without a pleading asking it, or alleging the facts entitling them to it. Under appellee's prayer for all proper relief, her petition properly setting out all the facts, the chancellor, on final hearing, correctly adjudged to her such relief as she was entitled to, although part of it was not specifically prayed in the petition; and on the whole case, as the record stood, the judgment of the chancellor is in accordance with the rights of the parties.

Judgment affirmed.

Ky.App. 1900.
57 S.W. 245, 22 Ky.L.Rptr. 277, 108 Ky. 602


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