White v. Fletcher

2 Ky. Op. 463, 1868 Ky. LEXIS 452

• Court: Court of Appeals of Kentucky
• Decided: September 22, 1868
• Status: Published

Opinion

Opinion op the Court by

Judge Peters:

The recited consideration in the deed from Fletcher to Wood, is Three Thousand dollars, acknowledged to have been paid down, but they both admit in their answers that all the purchase price was not paid, and allege that the true consideration for the conveyance was Two, and not Three Thousand dollars, and of that only $1,251.90, the amount of Fletcher’s indebtedness to Wood, were paid down.

If the conveyance had been volutary, and without consideration, appellants could not on that account alone have avoided the deed, because their debts were contracted subsequent to its execution, but as the parties to it admit, that it was made for a valuable consideration, and the deed recites the consideration, the creditors of Fletcher may reach whatever of the price remains unpaid, and appropriate it to the satisfaction of their debts.

Ireland, for appellant. Dulin, for appellee.

The true character of the transaction is not stated in the deed as is admitted; instead of the whole of the purchase money having been paid down at the time, only a part was paid, and instead of the price being $3,000, they say it was only two, and they take no proof to show that anything was owing by Fletcher to Wood, not even a note is alleged to have been taken, none exhibited for the residue of the alleged price, after deducting what they say Fletcher owed Wood at the time.

If the price expressed in the deed, was not the true price to be paid for the land, Wood & Fletcher should have proved it, and they should have proved that the Two Thousand dollars were paid; they held the affirmative of both these issues which they make themselves, and the onus was on them. The recitals in the deed, as has been too often held by this court to require citations of authority, are not evidence against a Stranger, although they are as between the parties, nor can the answer of one defendant be read or taken as evidence for his co-defendant. As then Wood failed to prove the purchase money was paid, it was a fund which Fletcher’s creditors whether prior, or subsequent could reach and apply to the satisfaction of their debts, in his hands.

Wherefore, the judgment is reversed, and the cause remanded with directions to render judgment in favor of appellants for their debts, and to subject the house and lot in the pleadings described to the payment thereof, postponing Wood’s claim, and for further proceedings consistent herewith.

Affirmed on cross-appeal.