Lair's Exr. v. Whitaker

1 Ky. Op. 446, 1867 Ky. LEXIS 280

• Court: Court of Appeals of Kentucky
• Decided: June 29, 1867
• Status: Published

Opinion

Opinion of ti-ie Court by

Judge Robertson :

It would be unprofitable to state all the minute facts conducing to show collusion, and to make an elaborate argument to prove that they sufficiently lead to the deduction that Thomas J. Whitaker holds the legal title to all the lands of his brother, W. F. Whitaker, in secret trust for his use and benefit. And we will only say> therefore, that we are satisfied with the judicial conclusion that all those lands are justly liable to the creditors of W. F. Whitaker, and ought to be subjected in those consolidated cases to the judgments of the appellants against W. F. Whitaker, but he is entitled to a credit for usury as charged and proved, the precise extent of which should be ascertained on the return of the case to the Circuit Court.

Lancaster, as garnishee, having derived any indebtedness to W. F. Whitaker, the simple fact that his deposition proves that he borrowed money from M. Whitaker could not entitle the appellants to a judgment against him without making her a party and properly litigating with her and Lancaster according to the 24Jth and 248th sections of the Code.

Wherefore, the judgment is reversed and' the cause remanded for further proceedings — and amendments if full and final justice requires any amended pleadings — not involving the question of fraud. Any person claiming a lien may be made a party, and Thos. Whitaker may assert claim to the extent of any money which he shows to have been tona fide paid or advanced out of his own means or that he is honestly bound to pay for W. F. Whitaker — on account of any of the lands adjudged to have been fraudulently conveyed-to him for W. F. Whitaker’s use. For any amount which may prove that he, in good faith, advanced with his own ■means, he may be entitled with other creditors to a pro rata distribution.