A. M. Lanphear & Co. v. Ketcham

53 Kan. 799

Opinion

The opinion of the court was delivered by

HortoN, C. J.:

In the action of Jewett against Harriet Ketcham and her husband, William Ketcham, a temporary injunction was allowed, restraining them from selling or disposing of the real estate attached in this action. In that action, to obtain the attachment issued, A. M. Lanphear, as the agent of Jewett, made an affidavit that William Ketcham had assigned and disposed of his property with intent to hinder, delay and defraud his creditors. The second paragraph or count of the petition was in the nature of a creditor’s bill, seeking to have Mrs. Ketcham held as trustee of the real estate. If the first action had been dismissed at the instance of the plaintiff for defects in the petition only, or without prejudice to a future action, many of the questions discussed on the part of the plaintiffs would be entitled to serious consideration ; but the first action was settled as well as dismissed. It was dismissed because it was settled. It was settled for the consideration of the $1,800 note, given by William Ketcham to the plaintiffs. This is the note sued on. With full knowledge of all the facts attending the transfer by William Ketcham to his wife of the real estate in dispute, Jewett settled the former action, and discharged the attachment, under an agreement with the parties. The plaintiffs cannot assail now the transfer of the real estate from Ketcham to his wife, upon a transaction prior to the settlement, even if any wrong existed originally concerning the same. The plaintiffs received the note in settlement of the former action, and, therefore, do not stand in the position of prior or existing creditors, with power to attack the transfer as a fraud upon their rights. (Brooks v. Hall, 36 Kas. 697.) Their status is rather that of a creditor subsequent to the transfer, with full knowledge, at the time of accepting the note in settlement, that Mrs. Ketch-am held the title of and claimed the real estate in question. (Sheppard v. Thomas, 24 Kas. 780.)

The judgment will be affirmed.

All the Justices concurring.