Schur v. Schur

Court of Appeals of Kentucky

Schur v. Schur

3 Ky. Op. 44, 1869 Ky. LEXIS 272

DecidedJanuary 26, 1869

StatusPublished

This text of 3 Ky. Op. 44 (Schur v. Schur) 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

Schur v. Schur, 3 Ky. Op. 44, 1869 Ky. LEXIS 272 (Ky. Ct. App. 1869).

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Opinion

Opinion of the Court by

Judge Hardin:

Whether or not the chancellor erred in sustaining the demurrer of the plaintiff to the defendant’s answer is the only question to be determined on this appeal.

The answer alleges in substance that the property for which, or its proceeds, the action was brought, was conveyed by the defendant and his wife by deed to John Schur with the fraudulent purpose and intent to cheat and delay the creditors of the defendants, and that John Schur acquiesced therein, and participated in the fraud, and that although the deed was recorded, it was without consideration, and John Schur never acquired the possession of any of the property which remained, as it was before, in the possession of the defendant.

The principle is too well settled to require argument or the citation of authority, that where, as it alleged by the answer in this case, property is conveyed or transferred by mutual arrangement of the parties, for the purpose of defrauding the creditors of the real owner, a court of equity will not lend its aid to enable either party to recover from the other the property or its proceeds, but will leave them to abide the consequences of their - own fraud on the rights of others.

As the chancellor would not have relieved the appellant if he had parted with the possession of the property under the fraudulent arrangement, neither should the court have aided John Schur to recover the possession of the property or its proceeds, if the facts were as alleged in the answer and admitted by the demurrer; and we do not perceive how the appellee, suing as a distributee of John Schur, can occupy a more favorable attitude, than he did himself, in respect to the consequences of his participation in the fraudulent transaction on which the plaintiffs claim was founded.

It seems to this court, therefore, that the court erred in sustaining the demurrer to the answer of the defendants, and in rendering the judgment against them.

Wherefore, the judgment is reversed, and the cause remanded for further proceedings consistent with this opinion.

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Opinion of the Court by

Judge Hardin:

Whether or not the chancellor erred in sustaining the demurrer of the plaintiff to the defendant’s answer is the only question to be determined on this appeal.

The answer alleges in substance that the property for which, or its proceeds, the action was brought, was conveyed by the defendant and his wife by deed to John Schur with the fraudulent purpose and intent to cheat and delay the creditors of the defendants, and that John Schur acquiesced therein, and participated in the fraud, and that although the deed was recorded, it was without consideration, and John Schur never acquired the possession of any of the property which remained, as it was before, in the possession of the defendant.

The principle is too well settled to require argument or the citation of authority, that where, as it alleged by the answer in this case, property is conveyed or transferred by mutual arrangement of the parties, for the purpose of defrauding the creditors of the real owner, a court of equity will not lend its aid to enable either party to recover from the other the property or its proceeds, but will leave them to abide the consequences of their - own fraud on the rights of others.

As the chancellor would not have relieved the appellant if he had parted with the possession of the property under the fraudulent arrangement, neither should the court have aided John Schur to recover the possession of the property or its proceeds, if the facts were as alleged in the answer and admitted by the demurrer; and we do not perceive how the appellee, suing as a distributee of John Schur, can occupy a more favorable attitude, than he did himself, in respect to the consequences of his participation in the fraudulent transaction on which the plaintiffs claim was founded.

It seems to this court, therefore, that the court erred in sustaining the demurrer to the answer of the defendants, and in rendering the judgment against them.

Wherefore, the judgment is reversed, and the cause remanded for further proceedings consistent with this opinion.

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Bluebook (online)

3 Ky. Op. 44, 1869 Ky. LEXIS 272, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schur-v-schur-kyctapp-1869.