Case 84 — Action to Set Aside a Deed for Fraud to Avoid Payment of Alimony

June 1.

#### Campbell & Others v. Trosper.

APPEAL FROM KNOX CIRCUIT COURT.

Judgment for Plaintiff and Defendant Appeals.

Affirmed.

Husband and Wife — Divorce and Alimony — Fraudulent Conveyance — Personal Judgment — Chancellor’s Judgment — Appeal— Pleading.

Held: , 1. Where a judgment for alimony does not provide for a lien on the estate of the divorced husband, only a personal liability is created.

2. Kentucky .Statutes, section 2126, providing that sales and conveyances made to a purchaser without notice, in fraud or hindrance of the right of the wife or child to maintenance, shall be void as against them, does not apply to a conveyance made by a divorced husband to defeat the wife’s claim for alimony; but, as she is a creditor, she may, like any other creditor, maintain an action under Id., section 1907a, to subject the land fraudulently conveyed, without first obtaining judgment and return of “no property.”

■3. While the finding of the chancellor will not, on appeal, be given the effect of the verdict of a jury, yet, where the evidence is conflicting, some weight will be given- to his finding, and it will not be disturbed if on the whole case the mind is left in doubt as to the truth.

4. Where a divorced husband, for the purpose of defeating the wife’s judgment for alimony, fraudulently conveyed his property to persons who, being on terms of intimacy with him, knew of the separation and of the wife’s judgment, and who permitted the grantor and his paramour to continue to occupy the property as had been done prior to the conveyance, when they must have known that the effect of the conveyance would be to defeat the wife’s claim, the chancellor’s finding that they had notice of the grantor’s fraudulent intent will not be disturbed.

■S. The grantees in a fraudulent conveyance which is set aside in an action by a creditor of the grantor can not be substituted to the rights of mortgagees whose liens they discharged, in the absence of a pleading alleging the facts entitling them to such relief.

*6036. Under plaintiff’s prayer for all proper relief, her petition setting out all the facts, the chancellor properly adjudged to her such relief as she was entitled to, though part of it was not specifically prayed in the petition.

JAS. D. BLACK, Attorney eor appellant.

1. A judgment for divorce and alimony does not of itself operate' as a lien on the land of the defendant, such a judgment has no more force than any ordinary judgment *'in personam.*

2. The only way the plaintiff in such judgment could acquire a lien on the land of her husband was by an execution or attachment.

3. The court has no power in suits for alimony, to divest the husband of the *title*to his land and convey it to his wife. He-can allow her the *use*of the land, but not the title.

4. There is no allegation in plaintiff’s petition charging appellants' as grantees of the land, under the deed made to them by J. H.. Campbell, with any notice or knowledge of any fraudulent intent, (if there was such intent) upon the part of said Campbell, *in the execution of the said mortgage.*

6. In order to adjudge a sale or conveyance void under section 2126, Kentucky Statutes, it must be made to appear, *both*that the grantor made the sale or conveyance in fraud or hinderance of the right of his wife, *and*that the *grantee*had notice of such purpose on the part of the grantor.. Kentucky Statutes, secs. •2122, 2123 and 2126; MdMahan v. McMahan, 4 Ky. Law Rep.,. 887; Lockbridge v. Lockbridge, 3 Dana, 27; Maguire v. .Maguire,. 7 Dana., 181; 2 Pomeroy Eq. Jurisprudence, sec. 754; 4 Bibb, 482, Lindsey’s Heirs v. .Rankin, &c.; 11 Bush, 367; Hardins’ Exrs.’ v. Harrington, &c.; 2 Dana, 323, Violet v. Violet; 12 B. M., 32, Ratcliffe v. Trimble, also page 38; 1* Met., 397; Short v. Tinsley, page 404; 3 Ky. Law Rep., 178, Adams’ Assignee v. Branch; 78 Ky., 105, Allen, &c., v. Russel,. &c., page 116; 12 Bush, 441, Uneller, &e., v. Engelin, &c.; 3 Met., 487, Williams v. Gooch.

JOHN T. HAYS, Attorney tor appellee.

1. It can not be seriously contended that the appellants or any of them took the deed in ignorance of the avowed purpose of J. H. Campbell to hinder the appellee in the collecting of her-divorce judgment.

2. The *hindrance*being established by the proof, in the execution of the deed by J. H. Campbell to Joel Campbell, &c., with notice thereof on the part of the grantees, the case at bar comes with,in. *604the provisions of section 2126, Kentucky Statutes, and the deed is therefore void.

*3. A*judgment for alimony is *an adjudged interest against the estate of the husband,*which by operation of law is a lien upon his estate for the payment of such judgment.

■Ky. Stats., secs. 2122, 2123, 2126 and 3907a; McCarty v. McCarty, 10 Ky. Law Rep., 409; Williams v. Gooch, 3 Met., 4S6; Foster v. Grigsby, 1 Bush, 99-100; Davis v. Davis, 10 Ky. Law Rep., 493.

Opinion op the court by

JUDGE HOBSON

Appirming.

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 for 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 cusitody of the two younger children was committed to her. Campbell paid the $50 due October I,1896; also, $43 of the $50 due January 1, 1897. On March *6053, 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.” Section 2122. “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.” Id. section 2123. “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.” Id. section 2126. When, in a divorce case, a sum o.f 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 *606to 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. Davis v. Davis, 10 Ky. Law Rep. 493; Tyler v. Tyler, 99 Ky. 31, (34 S. W., 898); McCarty v. McCarty (Ky.) 9 S. W., 294. Although, by section 2122, 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 in the judgment for a lien 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 eighteen months before, and was only a creditor. She was not then entitled to maintenance by him, and can not 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 can not be maintained under this section, being a creditor she may maintain the action, like any other creditor, under section 1907a, Kentucky Statutes: “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 fraud*607ulent 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.” Ap-pellee’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, Kentucky Statutes, 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 can not disturb the finding of the Chancellor on the facts. Though 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 *608frequently involve a number of issues and 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. Bank v. Stapp, 97 Ky., 432, (30 S. W., 1,000): Stephens v. Dickinson (Ky.) 43 S. W., 212; Marcoffsky v. Franks, Id., 440; May’s Adm’r v. Burns (Ky.) 44 S. W., 83; McCampbell v. McCampbell (Ky.) 46 S. W., 18 Woolley’s Ex’rs v. Greenwade’s Heirs (Ky.) 47 S. W., 335; Bank v. Clark (Ky.) 48 S. W., 1089.

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 Burr-ilia’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 Burilla 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 *609Ms 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.