Maggard v. Asher , 119 Ky. 46 ( 1904 )

Opinion of the court by

Chief Justice BURNAM —

'Reversing

On the 6th day of February, 1904, the appellees, A. B. Asher and J. T. Sizemore, brought this action against G. A. Brewer for the collection of a note due by him to them for $415, and simultaneously with the institution of the suit sued out a general attachment against the property of the defendant, which was levied by the sheriff upon' a tract of 150 acres of land lying on the Selioolhouse Br'anc-li of Out Shin creek of the Middle Fork of the Kentucky river, to which the defendant held title by deed from one William Sizemore, by posting a copy of the attachment on the dwelling house on the land. The defendant was proceeded against as a nonresident by warning order. On the 7th day of March thereafter the appellant, Reuben Maggard, intervened in this proceeding by petition, in which he alleged that on the 38th day of August, 1902 — long prior to the institution of appellee’s suit, — he liad filed an action against Brewer on a note due to him by Brewer for $500, and that he had at the same time sued out a general attachment against the property of the defendant Brewer, and had also in the same proceeding garnisheed in the hands of Wm. Sizemore any indebtedness due and owing by him to the defendant Brewer; that iie had realized a part of his debt, by the sale of certain personal property belonging to Brewer, but that Wm. Sizemore failed to answer, and at the June term, 3.903, a rule was awarded against him requiring him to answer the garnishment and disclose the amount of his indebtedness; that, at the date of the garnishment Wm. Sizemore owed Brewer $400; that subsequently to the service of the garnishment upon him he conveyed to Brewer the tract of 150 acres of land upon which the attachment of Asher and Sizemore was levied in consideration of his indebtedness to Brewer; that this conveyance was collusive and fraudulent, and was made for the purpose of defeating the1 garnishment in the hands of Sizemore; and further alleged that he was entitled to have the land itself, into which Size-more’s indebtedness to Brewer had been merged, first subjected to the payment of the balance of his demand. The answer of Asher and Sizemore to appellant’s intervening petition was, in substance, a tráverse. The deposition of William Sizemore was taken, and lie testified' that at the date of the service of the garnishment upon him he owed Brewer $400, and that subsequently thereto he had conveyed the land attached by appellee to Brewer for the sole consideration of this indebtedness. After the service of appellant's garnishment upon Wm. Sizemore, he could not legally pay off his indebtedness-to Brewer until appellant’s claim had been satisfied, and his conveyance of the land to Brewer in extinguishment of sueli indebtedness, and the subsequent levy by appellees of their attachment thereon, created no lien in their favor superior to the rights of appellant under his garnishment. Appellant, having the older equity, is entitled to have his debt first paid out of the land.

Judgment reversed, and cause remanded for proceedings consistent with this opinion.