Tuck v. Ogburn

5 Ky. Op. 326, 1872 Ky. LEXIS 282

• Court: Court of Appeals of Kentucky
• Decided: February 3, 1872
• Status: Published

Opinion

Opinion by

Judge Pryor:'

The conveyance by the Appellant Tuck to Mrs. Farrar was fraudulent as to the creditors of Tuck. There is no proof in this case of the payment by Mrs. Farrar to Tuck of the com sideration expressed in the deed. The evidence does not establish any indebtedness by Tuck to Mrs. Farrar and the mere rcitals in the deed although evidence as between the parties thereto, are not evidence as against those who are not parties or privies. So far as this conveyance is to operate against the claim of the appellee it stands as if not one dollar of consideration had been paid by Mrs. Farrar for all the interest of Tuck in his father’s estate. 3 Bush p. 402. Tuck is in no condition to escape liability by reason of the indulgence to the principal debtor in the execution. This indulgence as the sheriff swears was given at the instance of Tuck, and the new promise upon the part of the principal debtor to pay usurious interest does not1 release the sureties. If the property levied on sold at a sacrafjce it was the fault of the sureties as it was their duty to make it pay the debt, if they desired to be relieved from liability.

McPherson, Chaplin, for appellant. H. A. Phelps & Son, R. T. Petree, for appellee.

Judgment affirmed.