Citation Numbers: 91 S.W.2d 63, 263 Ky. 18
Judges: OPINION OF THE COURT BY JUDGE STITES
Filed Date: 1/17/1936
Status: Precedential
Modified Date: 1/12/2023
Affirming in part and reversing in part.
This is an appeal from a judgment of the Ohio circuit *Page 19
court sitting in equity. On September 17, 1932, appellant Tracy Tichenor recovered a judgment for $5,207.50 against V.W. Goff and T.B. Mapels as a result of injuries received while working in a wagon mine operated jointly by Goff and Mapels. Goff owned a two-thirds interest in the mine, and his wife a one-third. Mapels had no property subject to execution, and we are concerned here with the efforts to collect the judgment from Goff alone. On September 24, 1932, within a week after the judgment was obtained, Goff executed and recorded a mortgage for $1,000 to his brother-in-law, William F. McKernon, on his two-thirds interest in a 38-acre tract of land, together with the coal mine and mining equipment thereon, and also his one-half interest in a 42 1/2-acre tract. At the same time Goff executed a mortgage for $1,000 to his sister-in-law, Lee Tichenor Goff, covering his two-thirds interest in the 38-acre tract and the coal mine and mining equipment. On December 29, 1932, appellant Tracy Tichenor caused an execution to be issued on his judgment, and this execution was levied on the 38-acre tract, the 42 1/2-acre tract, and also on a 3-acre tract belonging to Mapels. Mapels claimed, and was allowed, a homestead exemption in the 3-acre tract, and no complaint is made here of that allowance. On July 7, 1933, this suit was filed by Tracy Tichenor alone against Goff, Mapels, and their wives, and against the mortgagees, William F. McKernon and Lee Tichenor Goff, and against the G. M. Coal Company, a dummy corporation then operating the mine under lease from Goff and Mapels, seeking to set aside as fraudulent the two mortgages to McKernon and Lee Tichenor Goff, and for a sale of the property to satisfy the judgment. On January 23, 1933, the defendants, Goff and Mapels, each filed a voluntary petition in bankruptcy in the United States District Court for the Western District of Kentucky. Thereafter, in October, 1933, an amended petition was filed in the case at bar in which the trustee in bankruptcy of both Goff and Mapels joined with the plaintiff in asking that the mortgages be set aside. With the amended petition, there was filed as an exhibit an order of the referee in bankruptcy authorizing the trustee to be substituted as a party plaintiff in this suit. However, the case seems to have been practiced as though there were thereafter two plaintiffs instead of one. In February, 1934, an answer was filed denying *Page 20
the allegations and conclusions of the petition as amended. The parties commenced taking proof in March, 1934, the defendants taking their proof first, and completed the taking of proof on the 18th of May, 1934. On June 6, 1934, the plaintiffs filed a second amended petition setting out that the attacked mortgages were insufficient to create a lien on the personal property referred to therein because, of the inadequacy of the description. The defendants objected to the filing of this second amended petition after all the proof had been taken, and the chancellor in his final judgment expressly declined to consider the matters there presented. On June 13, 1934, a third amended petition undertaking to bring in the attorneys for the defendants as parties to the suit was tendered, but the court refused to permit it to be filed. A fourth amended petition was tendered after the judgment in the case had been filed, but before it was actually entered, and the court refused to permit the filing of this amended petition also. Whether the court should have permitted the filing of the numerous amended petitions presented after the proof in the case was all taken, changing the issues or bringing in new parties, was plainly a matter within its discretion, and its refusal to permit the filing of the pleadings under the circumstances presented in this case will not be disturbed on appeal. Rassenfoss v. Dicter,
The questions remaining relate solely to whether or not the mortgages to Lee Tichenor Goff and to William F. McKernon are void under section 1906 of the Kentucky Statutes because made with the intent to hinder, delay, or defraud creditors of the mortgagor. Turner v. Hammock,
A more serious question is presented in connection with the mortgage to Lee Tichenor Goff. The record indicates that a portion of the property covered by this mortgage has been set aside to Goff in the bankruptcy proceeding, during the pendency of this suit, as a homestead exemption. To the extent that the mortgage includes exempt property, it is, of course, not vulnerable to the attack here asserted. Kennoy v. Cannon,
The record does not show what property has been set aside as a homestead in the bankruptcy proceeding, although there is a plea and claim of homestead in this case in the two-thirds undivided interest of the defendant Goff in the 38-acre tract. Of course, he is not entitled to two homestead exemptions, and he should be allowed the same exemption here as that set apart for him in bankruptcy.
Appellants likewise complain of the action of the chancellor in the denial of the right to cross-examine the incompetent, William F. McKernon, as if on cross-examination. At the time when the motion was made to require McKernon to submit to a cross-examination by the plaintiffs, the proof had all been taken and very clearly showed his incompetency. Under the circumstances, therefore, we think the matter was one within the discretion of the chancellor, and we are not prepared to say that he overstepped the bounds of that discretion.
Judgment affirmed as to William F. McKernon, and reversed as against the other appellees, for proceedings consistent herewith.