Behan v. Warfield , 90 Ky. 151 ( 1890 )

JUDGE HOLT

delivered the opinion op the court.

The appellee, Thomas W. Warfield, having a return of nulla bona upon an execution issued from a quarterly court against Marion J. Behan, brought this action, assailing a conveyance of a house and lot by the debtor to his mother, Clarinda Behan, as fraudulent, and seeking to subject the property to the payment of his judgment.

The lot-was purchased by the debtor after the creation of the appellee’s debt, and it is evident the conveyance to the mother was fraudulent. It was made after the suit had been brought in which the judgment was obtained, and ten days before it was rendered. The grantee was the mother of the debtor, and a. non-resident of the State. The consideration recited in the deed to her is only one-third of the fair value of the property, and after it was made the son exercised control over it as before, even to the extent of improving it considerably. Neither of them has testified in the case; and this silence, in view of the circumstances just alluded to, is significant upon the-question of fraud.

The appellee, upon the bringing of this action, sued out an attachment, but without executing any bond, and it was levied upon the house and lot. The averments of the petition are not sufficient to authorize an attachment under the provisions of our Code of Practice, and it is evident it was issued under the belief that the return of “no property” upon the quarterly court execution authorized it.

It is well settled that a creditor, where his demand is a purely legel one, as is the case here, can not invoke, the aid of a court of equity to assail a conveyance by his debtor as fraudulent, unless he first obtains a judgment upon his debt, and a return of nulla bona, or-else sues out an attachment against the- transferred property, as provided by our Code, in case he chooses to proceed against it at the outset, and without waiting to get the return of “no property.” He may pursue either course, but must follow one of them. The reasons for this rule have been so often stated by this court that they need not be repeated. (Martz v. Pfeifer, &c., 80 Ky., 600; Kyle v. O’Neil, &c., 88 Ky., 127.)

Section 722 of our Code provides, however, that land can not be levied on or sold under an execution from a quarterly court, and the reason of the above rule, .therefore, requires that if a creditor wishes to base a suit in equity to set aside a conveyance of land as fraudulent upon the ground that he has obtained a return of nulla bona, it must be upon an execution under which land could have been levied upon and .sold. If, therefore, his judgment be in the quarterly court, he must, after an execution issued upon it has been returned “no property,” obtain a transcript of the proceedings, hie them in the clerk’s office of the circuit court, and have an execution issued from there, as provided by section 723 of the Code, and returned “no property.” He may then, but not until then, if he be proceeding upon the ground that he has a return of nulla bona, assail a conveyance by the debtor of his land. He may, of course, without obtaining such a return upon an execution from " the circuit court clerk’s office, proceed by garnishment to subject to the payment of his debt- any property of the debtor over which the quarterly court has jurisdiction; but if he would subject land which the debtor has fraudulently conveyed, and wishes to proceed upon the ground that he has a return of nulla bona, then he can not do so unless the execution so returned was one under which land could have been levied on and sold.

It is, therefore, urged that, as only personalty could be seized under the appellee’s execution, the clerk of .the circuit court had no power to issue an attachment without bond, and that it and the levy under it are void. In short, that the circuit court had no jurisdiction to annul the conveyance to Mrs. Behan, and order a sale of the lot, because there was no such return .of nulla bona as authorized the suit. '

This objection is now, for the first time, made. It was not presented in any way in the lower court. The answer of Mrs. Behan put in issue the validity of the conveyance to her. It made no other question. The case was tried out upon this single issue; and it was decided by this court, and properly as we yet think, in the case of Barton, &c., v. Barton, &c., 80 Ky., 212, that where this is done the- question can not, for the first time, be raised in this court whether the creditor has taken the preliminary step which authorized him to present the question to the debtor •or his grantee for issue.

If the result had been adverse to the appellee, he ■would have been bound by it. The appellants can not be permitted to rely for protection upon the decree if favorable to them, but if unfavorable, to now, for the first time, question it because a step was not taken by the appellee which was necessary to enable. him to present a question which they, without objection, put in .issue, and contested up to judgment.

The parties were before the court, the attachment was levied upon the property, and, as said in the case last cited, “here the court had jurisdiction to adjudge whether a conveyance or transfer of property was fraudulent, provided certain steps had been taken, and a failure to raise the question as to whether such steps had been taken is akin to submission of the person to the jurisdiction where there has been no service of process, which may in all cases be done when the subject-matter may otherwise be inquired of by the court.”

It matters not that Mrs. Behan died during the pendency of the action in the lower court, and that some of her devisees, who were made parties, are infants. She had, by her answer, accepted the issue. By so doing she had already waived any question preliminary to it. They stepped into her place as to the further prosecution of the issue. Their guardian ad litem, by his answer, merely adopted the one she had filed, and which invited the court to hear and determine the validity of the conveyance to her. Having done so, it is too late, upon- an appeal, to. say, for the first time, that the opposing party had. not put himself in a position to present the question.

Judgment affirmed.