#### Mary A. D. Wood *v.*Kinkead & Sweatnam, et al.

Judgment by Default — Defendant Constructively Summoned — Petition—Proof of Allegations — Affidavit of Plaintiff..

The allegations of a petition against a defendant constructively summoned, and who has failed to appear, cannot be taken as true, unless the plaintiff files,' with his petition, his own afir davit, stating that the-allegations are true and known to be so by the defendant and that they cannot be proven otherwise than by his answer.

APPEAR EROM MCCRACKEN CIRCUIT COURT. O. P. DIV.

January 10, 1871.

Opinion oe ti-ie Court by

Judge Peters:

On tbe 14tb of February, 1867, William Wood conveyed bis estáte, both real and personal, in McCracken county to Philip Nunn in trust for tbe payment of bis debts, setting forth tbe names of tbe creditors and tbe amounts of their respective debto to be secured, and among tbe creditors named is Mary A. D. Wood, bis sister, whose debt be states to be aboue $3,000.

Tbe trustee having failed to sell tbe .trust estate, or to pay tbe debts of Wood, and to execute tbe requisite bond under tbe statute, this suit in equity was instituted by Kinkead and Sweatnam, two of tbe creditors named in the deed, to compel tbe execution of tbe trust, and for general relief.

In their original petition they say “they are informed and so charge that tbe *debts*of Mary A. D. Wood and Philip Nunn have been fully paid off and discharged; but do not know, plaintiffs ask that each of tbe defendants be required to answer this petition, and say bow much each has been paid” and in that petition there is no other allegation against Mary A. D. Wood who was proceeded against as a non-resident defendant.

In an amended petition filed tbe 30th of April, 1869, tbe plaintiffs below allege, that Nunn tbe trustee bad never executed tbe bond required by law, and ask that all bis acts as such may be, for that reason, adjudged null and void, that Mary A. D. AVood *175is a non-resident of tbe State, that Wood the grantor, after the institution of this suit, and after the service of the summons on him had conveyed to one Henry Stanley a large portion, if not all' of the trust property and exhibit the deed to him therefor, and conclude with a prayer that the conveyance to Mary A. D. Wood by Wood & Nunn, and the deed to Stanley by Wood, be annulled, and set aside, for a sale of all the trust property, and that the proceeds arising therefrom be applied to discharge “the *honest*and *proper*debts of defendant Wood” and for all general and special relief.

Another amended petition was filed in October, 1869, but in it the plaintiffs only charge that Nunn had received of trust funds, and specified amounts, and pray that he be compelled to pay the same into court. A warning order was taken against Mary A. H. Wood and Stanley and an attorney appointed to defend for them, but he never made a report in the case.

With no other allegation against Mary A. D. Wood, and-without any evidence against her, the cause was submitted, and the court adjudged that the deed of conveyance from William Wood, and Philip Nunn assignee of William Wood to Mary A. D. Wood of Herkimer county, New York, of date the 24th of April, 1867, be set aside as fraudulent and void as to the creditors of William Wood in this suit, and that is the first time the deed referred is mentioned, and after rendering judgment in favor of the creditors of Wm. Wood named in the deed of trust, except Byers & Oo., whose debt was adjudged to have been paid, and adjudging that King was entitled by assignment of the debt owing to How, and postponing the claim of Stanley until said judgments should be satisfied; it was adjudged that the debt named in the deed of assignment as a debt to M. A. D. Wood for about $3000 was not .valid,. never existed in fact, and was-then disallowed. The trustee’s report was confirmed, and a sale of so much of the real estate embraced in the deed, as should be necessary to pay the debts therein adjudged to be owing and the costs of the suit, was ordered, and from that judgment Mary. A. T). Wood has appealed.

It is manifest from an inspection of the original and amended petitions, that there is not an allegation of fraud either against appellant or William Wood in relation to her claim, that i.t was unfounded, did not exist, nor that it had been paid, and without *176some suck allegation tbe judgment was -wholly unauthorized, and could not be sustained. But even if the necessary averments had been made, still as appellant was only consctructively summoned, and did not appear to the action, they could not have authorized a judgment against her without proof.

*L. D. Husbands, for appellant.*

*Bramblett & Durnett, for appellee.*

Sec. 439, Civil Code provides that the statements of the petition as against defendant constructively summoned and who has not appeared, except such as are for his benefit, shall not be taken as true, but are to be established by proof.

But where the plaintiff files with his petition, his own affidavit, stating that any of the allegations thereof recited in the affidavit are true and known to be so by the defendant, and that they cannot be proved, or shown otherwise than by his answer, so far as affiant knows or believes, such allegations unless denied by the answer shall be taken as true.

As there was no proof offered against appellant’s claim, and no affidavit filed with the petition, as prescribed by this section, the judgment was on that account as against appellant, erroneous even if the petitions or either of them had contained the necessary allegations. Wherefore, the judgment is *reversed,*and the cause remanded, with directions to adjudge to appellant the debt named in the deed as due her, and upon the sale of the trust property that the same be paid, or if there should not be enough to pay all the creditors that she have her *pro rata*after paying the costs of the suit.