Taylor v. Turner , 1868 Ky. LEXIS 478 ( 1868 )

Opinion of the Court by

Judge Williams:

This suit was originally begun by C. S. Turner’s statutory guardian, but he having arrived at majority, prosecuted it in his own name, against Taylor and Newby and others to set aside conveyanees alleged to be fraudulent and to subject tbe property to his debt of some $2,520 on Taylor et al. Tbe court adjudged the sale fraudulent as to two negro girls, but dismissed tbe petition as to a negro man and two tracts of land, from which both parties have appealed on tbe same record.

Taylor and Newby were brothers-in-law and lived within a few hundred yards of each other on adjoining farms. At tbe time of tbe pretended sale of tbe negroes there was no ostensible change of possession, tbe pretended hiring, by Newby, of tbe negroes to Taylor, tbe vendor, could not. admonish creditors or purchasers of such sale. ■

Taylor was then in embarrassed circumstances, this debt bad been reduced to judgment, at least when tbe bill of sale bears date, one execution bad been issued and stayed for some considerable time, another bad gone to tbe sheriff’s band, tbe fact that tbe officer then found tbe negro man in Newby’s possession makes no substantial distinction as to him and tbe other negroes who still remained in Taylor’s possession. Tbe purchases set up in Newby’s and Taylor’s answers was made in August, tbe bill of sale bears date tbe following February, tbe list of taxable property is of January 10th, shows that both listed tbe same number of slaves for previous years, no other sales or purchases are spoken of in either tbe pleadings or proof, no ostensible change of possession was made until after February.

Tbe tract of land claimed by Newby as having been purchased from Taylor and to be paid for by settling tbe purchase price with Wm. Taylor, tbe father of W. S. Taylor, on a note held on tbe latter, is too transparent to escape tbe scrutinizing gaze of tbe chancellor.

There is no proof that such a note existed, and if it did, it was probably given for property substantially an advancement and not to be paid until, tbe old man’s death, and then to be settled for in tbe distribution; tbe note is not exhibited, though called for by tbe adverse party, nor is Wm. Taylor’s deposition taken, but even if tbe note existed, there is no proof that Newby ever paid anything on it, or that Wm. Taylor ever recognized, asserted, or- even knew of this transaction.

Tbe Clark Montgomery farm of 81 acres in Washington county is in no better condition.

W. S. Taylor purchased this land of Montgomery, took bis title bond therefor and subsequently took the deed to himself; thus matters remained since the year 1855 down to the brining this suit in January, 1863. Taylor paid on said land a mare at $85 which belonged to 'Squire Land, and gave his own notes, one due the first of the following January, the other at a subsequent date, and Land rented the place out the first year to Taylor’s relative, Taylor and himself then lived neighbors in Madison county and both desired to remove to Washington county, and Taylor had purchased a small farm within 1 1-4 miles of this one, Land removed to it the next year. The first payment was made by money borrowed, through'the instrumentality of Talor, or Turner’s guardian, and it was paid by Taylor, the subsequent payments were made with money borrowed from Stone and this’ note too was taken up by Taylor, he substituting his note with Newby and others as his security.

Both borrows were made mainly upon Taylor’s credit and responsibility, and he paid the obligations.

Land, if not insolvent, was embarrassed qnd had but few resources ; he continued to reside upon the place until he volunteered in the Federal army in 1862, when-his wife sold his small personal property and removed with her relatives to Illinois.

Land then rented the farm out for the next year, but Taylor got the rent note.

It is evident that though Land began the negotiation for this farm and that it may have been the intention it should be his when he paid for it, yet he never did pay anything but the mare and had several years use of the place; the purchase being made by-Taylor, in his own name, the title being conveyed to him and being upon record, and as Montgomery says, the title bond being surrendered to him through Taylor, and no proof of even an assignment of it to Land, renders this farm liable to Taylor’s creditor.

Whilst there was a controversy of opinion as to. the value of the slaves when levied upon and taken by Newby from the sheriff by executing bond, yet we do not feel authorized to disturb the values as fixed by the commissioner, as perhaps all the facts detailed by the evidence sustain such valuation.

Wherefore, said judgment is affirmed on the appeal of Taylor and Newby, and reversed on the appeal of Turner, with directions to the court below to subject the value of the negro man and the farm, claimed by Newby as being purchased from Taylor; also to subject tbe Clark Montgomery farm in Washington county claimed by Land to tbe judgment of Turner.

Burnam, for Taylor, &c. Turner, for Turner.