Taylor v. Lander

60 P. 320, 61 Kan. 588, 1900 Kan. LEXIS 90

Opinion

The opinion of the court was delivered by

Smith, J.:

This suit was brought, so far as the record discloses, on July 29, 1895, being an action in the nature of a' creditor’s bill to enforce the lien of a judgment rendered June 5, 1893, against the Arkansas Valley Land & Loan Company, under which certain land was attached March 16, 1893. It was alleged in the petition that, in 1890, the Arkansas Valley Land & Loan Company attempted to transfer its property, including the land in controversy, to the Kansas Savings Bank, and made a pretended transfer of the same, which was fraudulent. There was some evidence introduced by the plaintiff below in support of this allegation of the petition.

If the Kansas Savings Bank, whose assignee was defendant below, took title in 1890, this creditor’s suit to obtain relief on the ground of fraud, having been brought in 1895, was barred by the statute of limitations. It will be noticed that a formal deed was made by the Arkansas Valley Land & Loan Company to the Kansas Savings Bank March 22, 1893, six days after the land was attached by Taylor ; and judgment being rendered in the action, it was of course subject to the attachment and judgment lien. The land was ordered sold to satisfy the lien of the attachment, and the plaintiff below might have issued an execution, sold the property, and applied the proceeds to the payment of his judgment. This was an adequate remedy at law. He needed no aid from a court of equity to set aside a conveyance made after his attachment lien had been fixed upon the land, which attachment was sustained and the property ordered sold to satisfy the debt.

If the bank took title to the real estate in 1890 by succeeding to all the rights and assets of the Arkansas Valley Land & Loan Company, then the suit of plaintiff below was clearly barred by limitation, having been commenced in 1895, more than two years after he was in a position, as a judgment creditor, to maintain a creditor’s suit. If the bank took title by the deed of the 22d of March, 1893, after the land was attached by Taylor, then the latter, on obtaining judg ment, had a right to sell the same on execution; and thus, haying an adequate remedy at law, he cannot maintain this equitable action. (Stanton v. Catron, 45 Pac. [N. M.] 884.)

The judgment of the court below will be affirmed.