Hibbard v. Potter's Adm'r

7 Ky. Op. 11, 1873 Ky. LEXIS 392

• Court: Court of Appeals of Kentucky
• Decided: June 18, 1873
• Status: Published

Opinion

Opinion by

Judge Peters:

At the time of the conveyance of the land to O. P. Hibbard the evidence fails to show that he had the means to pay for it. It is proved by various witnesses that Hiram Hibbard said he had purchased and paid for the land; he lived on it and rented out a part of it, collected the rent, and there is also evidence of the statements of Mr. John Hibbard that he said that he had sold the land to his son Hiram' for four hundred dollars. And although the declarations of the "vendor, John Hibbard, after he had sold the land, and those of Hiram Hibbard might not have been competent evidence, still these declarations as proved by the witnesses were not objected to, and came here as evidence in the case, uncontradicted by anything but the deed from. John Hibbard to O. P. Hibbard, with tiie additional facts that Hiram- Hibbard occupied the land, claimed it, rented it, and subjected it to all the acts of co-partnership, while the other party contents himself with a mere denial that H. Hibbard paid for it without any effort to show that he had the means of payment, or that he ever exerted himself to make payment.

If it is admitted in the pleadings that Hiram Hibbard owed the debt to Potter sued on before the purchase and conveyance of the land it is not said or asserted that H. PIibbard had the land conveyed to his son by way of advancement to him;, evidence of the declarations of his vendor and H. Hibbard unobjected to show that the latter paid for the land and had it conveyed to his son under circumstances of a character necessarily indicating a design to withdraw it from- his creditors and subject the property to the payment of the debts of him who advanced the money which existed prior to the transaction.

Such is this case, and consequently the judgment must be affirmed,