Johnson v. Elkins , 90 Ky. 163 ( 1890 )

JUDGE HOLT

delivered the opinion or the court.

Tlie appellants having a judgment in the Green Circuit Court against the appellee, David Elkins, sued out an execution to the county of Larue, where the debtor then resided. It was directed to the sheriff, but there being none at the time in the county, it was received and returned by the coroner “no property found.” This action was then brought in the Larue Circuit Court to subject to the payment of the judgment a tract of land of sixty-tliree acres, situate in said county, which had been conveyed to the wife of the debtor, Elkins, by one Noe.

The'petition avers that the land was, in fact, paid for by the debtor, and that it was conveyed to the wife to defraud his creditors. The copy of the execution which issued to Larue county shows, at least prima facie, that the appellants’ debt was created before the land was purchased. It bears interest, according to it, from October 14, 1887, and the purchase was not made until November 1, 1887. It appears that the land was paid for with pension money of the debtor, drawn from the United States Government. The money itself never came to his hands. The check for it did, and was indorsed by him to one Hoover, who, for the debtor, drew the money upon it, and out of it paid Noe for the land. It is now claimed that the money, when paid to Noe, was in the course of transmission to the pensioner, and being, therefore, exempt from seizure for the debts of the pensioner by the United States statute, it was no fraud upon his creditor to invest it in the land .and have the deed taken to the wife.

Section 4747 of the Revised Statutes of the United States provides: “No sum of money due, or to become due, to any pensioner shall be liable to attachment, levy or seizure by or under any legal or equitable process whatever, whether the sum remains with the pension office, or any officer or- agent thereof, or is in course of transmission to the pensioner entitled thereto, but shall inure wholly to the benefit of such pensioner.”

It has been repeatedly decided by this court that after the money reaches the hands of the pensioner it is no longer exempt. (Robion v. Walker, 82 Ky., 60; Hudspeth v. Harrison, &c., 6 Ky. Law Rep., 304.) In the last-named case it was held that the fact that land was purchased with pension money did not ex-exempt it from liability for the pensioner’s debts. In the case of Sims, &c., v. Walsham, &c., 9 Ky. Law Rep., 912, the money itself did not come to the hands of the pensioner, but a check did, and he transferred it to another person, with directions to draw the money and pay it to his sons, to be, and which was, used by them in paying for land, which was conveyed to them. It was held that the land so held by them by voluntary conveyance was liable for the pensioner’s debt. These cases are decisive of this one, so far as this question is concerned. Another one presents itself, however, which, doubtless, controlled the lower court in dismissing the action of the appellants.

A creditor may sue in equity to set aside a conveyance of land by his debtor as fraudulent upon a return of nulla bona upon an execution issued from a court having jurisdiction to sell land, or he may do so without it, provided lie sues out an attachment upon any of the grounds mentioned in our Code of Practice, and in conformity to its provisions. He may adopt either course, but one or the other must be pursued. (Martz v. Pfeifer, &c., 80 Ky., 600; Kyle v. O’Neil, &c., 88 Ky., 127) In this instance the averments of the petition are not sufficient to sustain the action upon the last-named ground. It is evident the action is attempted to be based upon the return of “no property” upon the execution which issued to Larue county.

By section 667 of the Code of Practice every process in an action must be directed to the sheriff of the county. If he be a party to the suit, or interested in it, then it must be directed to the coroner; or if he be interested, then to the jailer; or if all these officers be interested, then to any constable; and a summons or an order for a provisional remedy may, at the request of the party in whose behalf it is issued, be directed to any one of the officers above named, if he be not a party to nor interested in the action.

It was held in the case of Menderson, &c., v. Specker, &c., 79 Ky., 509, that an attachment must be executed by the officer to whom it is directed, and that it can not be executed by anjr officer to whom it might have been directed, as is specially provided by section 47 of the Code as to a summons. The word “process,” as used in the Code, includes an execution. It was so decided in the case 'of Gowdy v. Sanders, 88 Ky., 346, where it is also held that an execution from a circuit court, or a court of like jurisdiction, must be directed to the sheriff, unless he be a party to the action or interested in it, and that it must be directed to the officer by whom it is to be executed. The return by the coroner, therefore, upon the appellants’ execution is a nullity. He had no right to handle it; it was not directed to him, and could be executed only by the officer to whom it was directed. It results, therefore, that there was, in fact, no return of nulla tona to support this action. This objection has not been waived by the appellees. It was raised in the lower court and insisted upon in the answer. It is, therefore, available here, and the judgment must be and is affirmed.