Kane v. Adams

Court of Appeals of Kentucky

Kane v. Adams

5 Ky. Op. 557, 1871 Ky. LEXIS 505

DecidedSeptember 8, 1871

StatusPublished

This text of 5 Ky. Op. 557 (Kane v. Adams) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kane v. Adams, 5 Ky. Op. 557, 1871 Ky. LEXIS 505 (Ky. Ct. App. 1871).

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Opinion

Opinion by

Judge Lindsay :

The execution of the mortgage by Kane to his co-appellants not only evidenced an intention on his part to prefer the mortgagees to the rest of his creditors but actually had that effect unless the judgment of the circuit court shall be upheld.

The mortgagees in their answer claim that they were about to attach the property of Kane, and that the mortgage was given to prevent them from taking such proceedings to secure their debts. Kane was not a non-resident of the state, hence if there existed any ground for their contemplated attachments, it must have been of a nature indicating an intention upon his part to avoid the payment of his debts by some fraudulent disposition of his property. Such a disposition of property is always made in contemplation of insolvency.

The mortgagees recognizing this fact attempted to secure themselves by their mortgage. We aré of the opinion that the state of facts developed by the record brings this case within the operation of the act of 1856, and hence that the demurrers to said answers were properly sustained. The petitions sufficiently allege that the debts of the appellees existed before the execution of the mortgage. The judgment appealed from is affirmed.

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Opinion by

Judge Lindsay :

The execution of the mortgage by Kane to his co-appellants not only evidenced an intention on his part to prefer the mortgagees to the rest of his creditors but actually had that effect unless the judgment of the circuit court shall be upheld.

The mortgagees in their answer claim that they were about to attach the property of Kane, and that the mortgage was given to prevent them from taking such proceedings to secure their debts. Kane was not a non-resident of the state, hence if there existed any ground for their contemplated attachments, it must have been of a nature indicating an intention upon his part to avoid the payment of his debts by some fraudulent disposition of his property. Such a disposition of property is always made in contemplation of insolvency.

The mortgagees recognizing this fact attempted to secure themselves by their mortgage. We aré of the opinion that the state of facts developed by the record brings this case within the operation of the act of 1856, and hence that the demurrers to said answers were properly sustained. The petitions sufficiently allege that the debts of the appellees existed before the execution of the mortgage. The judgment appealed from is affirmed.

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Bluebook (online)

5 Ky. Op. 557, 1871 Ky. LEXIS 505, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kane-v-adams-kyctapp-1871.