Appeal from Circuit Court, Anderson

De

Action by Hiram Puckett against J. W. Caldwell, M. L. Caldwell, and others. fendant J. W. Caldwell died, and the action was revived against his administrator and heirs at law. From so much of the judgment as set aside the deed from J. W. Caldwell to defendant M. L. Caldwell and subjected the land to plaintiff's debt, defendant M. L. Caldwell appeals, plaintiff taking a cross-appeal from that part of the judgment ordering the restoration to M. L. Caldwell of the consideration paid by him for the land, and subjecting the land to its payment. original and cross-appeals.

tract of sale; on the other hand, appellee
was willing and anxious to take the property County.
according to the terms of the contract, or
subject to a reduction in the purchase price
by reason of the easement. Thus there was
presented to the chancellor a question purely
of equitable cognizance. Specific perform-
ance of a contract of sale of real estate does
not go as a matter of course, but is withheld
or granted according as equity and justice
seem to demand under the facts and circum-
stances in the case. In ordering appellee
to take the property and pay the purchase
price, subject to the temporary retention of
an amount sufficient to cover the question of
damages, the court's decree was eminently
fair and equitable. Appellant being unable
to comply with its contract, and appellee,
having been damaged through such failure,
was justly entitled to damages or a reduction
in the purchase price.

The amount found by the jury is supported by the proof, is not excessive, and, finding no reason to reverse the judgment, it is accordingly affirmed.

(186 Ky. 111)

CALDWELL et al. v. PUCKETT.

(Court of Appeals of Kentucky. Dec. 2, 1919.)
278(1)

1. FRAUDULENT CONVEYANCES
BURDEN OF PROOF ON GRANTEE TO SHOW
IGNORANCE OF GRANTOR'S FRAUD.

In action under Civ. Code Prac. § 439, to enforce satisfaction of an unpaid judgment. petition attacking conveyance by judgment debtor to his son as fraudulent, and asking that it be set aside on the grounds specified by Ky. St. §§ 1906, 1910, the relationship cast upon the son the burden of showing his ignorance of the fraud shown to have been practiced by his father upon creditors in making the conveyance

to the son.

2. FRAUDULENT CONVEYANCES

168-INADEQUATE CONSIDERATION ALONE DOES NOT CONSTITUTE FRAUD.

Affirmed on both

L. W. McKee, of Lawrenceburg, and Edwards, Ogden & Peak, of Louisville, for appellant.

F. Feland, of Lawrenceburg, for appellee.

SETTLE, J. In this action brought in the court below September 12, 1916, by the appellee, Hiram Puckett, under section 439, Civil Code, to enforce satisfaction of an unpaid judgment for $500, recovered in 1882 by him against J. W. Caldwell and others in the Washington circuit court, an attachment was issued and levied upon a 90-acre tract of the defendant J. W. Caldwell, who had, by of land in Anderson county as the property a deed executed shortly theretofore, conveyed it to his son, the appellant M. L. Caldwell, for a recited cash consideration of $1,800. The petition attacked this conveyance as fraudu. lent, and asked that it be set aside on the grounds prescribed by section 1906 and also section 1910, Kentucky Statutes. M. L. Caldwell was joined with his father as a defendant to the action, and in due course filed an answer to the petition, traversing its allegations and alleging the good faith of the grantor in making the conveyance and that of the grantee in accepting it; also the adequateness of the consideration and its full payment. J. W. Caldwell failed to answer, as he became seriously ill soon after the execution of the deed, and died, intestate, five weeks later, after which the action was revived against his administrator and heirs at law.

Where the consideration was a valuable one, the good faith of son in purchasing land in question from his father is not affected by the fact that the value of the land may have been On the hearing the circuit court rendered somewhat greater than the amount paid, unless it appears that the son had notice of the fraud- judgment, declaring that J. W. Caldwell in ulent intent of his father in making the con-making the conveyance in question intended

veyance.

to thereby defraud the appellee as his creditor, but that the evidence failed to show

3. FRAUDULENT CONVEYANCES 187-RES- such fraud on the part of the appellant M. L.

TORATION OF CONSIDERATION PAID BY BONA
FIDE PURCHASER.

If there is a valuable consideration paid by the grantee and he is without knowledge of the intent of the grantor to defraud his creditors, or in possession of no facts calculated to put him on inquiry, he will not upon the setting aside of the conveyance, be made to lose the consideration paid by him for the land.

Caldwell, or his knowledge of the fraud intended and practiced by the grantor, and held that he, being a bona fide purchaser, was entitled to the return of the consideration paid by him for the land and to a first lien on the land for its payment. Hence the deed was set aside, appellee's attachment sustained, and the land ordered to be sold, first, to pay

(216 S.W.)

and he is without knowledge of the intent of the grantor to defraud his creditors, or in possession of no facts calculated to put him on inquiry as to whether such fraud is intended by the grantor, he will not, upon the setting

the amount due appellant, and next the judg- | valuable consideration paid by the grantee, ment debt of appellee. The land was later sold for an amount sufficient to pay both demands in full and all costs of the action. By this appeal M. L. Caldwell seeks the reversa! of so much of the judgment as set aside the deed from J. W. Caldwell to him and sub-aside of the conveyance by the court, be made jected the land to the appellee's debt, and the to lose the consideration paid by him for the latter has taken a cross-appeal from that part land. of the judgment ordering the restoration to appellant of the consideration paid by him for the land and subjecting the land to its payment.

[1] We are unable to find any ground for reversing the judgment of the circuit court. We think the fraudulent intent of the grantor in making the conveyance established by the evidence as a whole. But while the close re lationship existing between the grantor and grantee compelled the court to regard with suspicion the transaction between them, and cast upon the grantee the burden of showing his ignorance of the fraud practiced by the grantor upon his creditors, yet we think the evidence justified that court in giving the same faith and credit to the genuineness of this conveyance, in so far as the grantee was concerned, as if that relationship had not existed. In other words, the evidence in this case seems to bring it, as to the grantee, within the rule announced in Pence v. Shackelford, 142 Ky. 10, 133 S. W. 956.

[2, 3] It does not appear from the evidence that appellant at the time of the conveyance had any knowledge of the existence of the judgment debt in favor of appellee against his father. Appellant had resided for several years in Oklahoma, and it is hardly probable,

It appears from the evidence that upon the return of appellant from Oklahoma he found his aged father in feeble health and able to do little for his own support, and that in view of this situation he purchased of him the land at a price fixed by the father and paid him that price, and, in addition, assured him that he would be permitted to occupy the land the remainder of his life free of rent or other charge. These facts fail to show the fraud alleged in the transaction by appellee. We do not know what the father would have stated about the transaction, as his death occurred before his deposition could be taken. But as the record appears it fails to connect appellant with any fraud that may have been intended by his father in making the conveyance.

As our consideration of the entire evidence fails to convince us of error in the judgment, it should be, and is, affirmed both on the original and cross-appeal.

(186 Ky. 114)

CABBLE v. HAWKINS et al.

(Court of Appeals of Kentucky. Dec. 2, 1919.) 1. EVIDENCE 586(3, 4)-AFFIRMATIVE AND

NEGATIVE; RELATIVE WEIGHT.

Affirmative evidence is entitled to greater consideration than negative, other things being equal.

2. SLAVES 14-SUFFICIENCY; LINEAGE OF

CLAIMANT TO REMAINDER OF ESTATE.

Evidence held to show that the father of claimant of the remainder of testator's estate was the son, of testator, a former slave, and customary marriage and were living together his wife, born after they had entered into a as husband and wife so as to entitle claimant to the property.

in view of there having been no effort on the part of appellee, by the issuance of an execution or otherwise, to collect the debt of his father for eight years, that he on his occasional visits to Kentucky and his father, received information of the debt. The evidence leaves no doubt of appellant having paid his father the $1,800, named in the deed as the consideration for the sale of the land, for the payment was made in the presence of the dep-uty clerk who took the grantor's acknowledgment to the deed, and some days later the grantor was seen by two witnesses in possession of the money. The consideration is not so inadequate as claimed by appellee when it is considered that this was third rate land, and the value of lands of all kinds was far 3. MARRIAGE 16, 50(3)—VALIDITY OF SLAVE lower in 1916 than that reached by such lands since the close of the European War. To say A customary marriage among slaves was the least, the consideration was a valuable recognized by both white and black, so that one, and, this being true, the good faith of where a man and a woman lived together as appellee in purchasing the land is not affected husband and wife had recognized each other as by the fact that its value may have been such, and were so recognized and acknowledged by people living in the same neighborhood, even somewhat greater than the amount he paid for though the rites of matrimony had not been it, unless it were made to appear that he had publicly celebrated, evidence of a marriage cernotice of the fraudulent intent of his father tificato was not necessary to establish the in making the conveyance. If there is a validity of a marriage.

MARRIAGE.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

R. W. Slack and Little & Slack, all of what was her name? A. Jennie Rouse. * Owensboro, for appellant.

W. T. Ellis and J. H. Payne, both of Owensboro, for appellees.

Nancy Bibbs testified that she lived in Henderson; that she does not know her age, but that she was born many years before the "Q. How long did you know him? A. Been Civil War and was a slave. She says she knowing him ever since in slave time.

(216 S.W.)

"Q. Did you know of his having been married to Jennie Rouse? A. Yes, sir; he was married right in my room.

"Q. Is she any kin to you? A. Yes, sir. "Q. When was it he was married to Jennie Rouse in your room? A. After the war. "Q. Where did he live? A. On Brummett's hill.

"Q. In the city of Henderson? A. Yes, sir. "Q. How many children did Thurston and Jennie have? A. Ned, Robert, Mattie, and an infant baby. *

"Q. Who was the minister that married them war. in your house? A. Anthony Bunch."

She then names the witnesses who were present at the wedding and says that 11 persons present at the wedding are dead except she and Mary Payne. Further testifying, she says Ned, the son of Thurston, was married to Miss Tyson, and that the appellant Herbert is the only child of Ned.

*

"Q. How do you know what time he was born? How did you get your information? A. Thurston married his mother after freedom, after he came home out of the army.

"Q. Whose mother? A. Ned's mother.

"Q. Did you see him when he was married? A. Yes, sir.

"Q. To Jennie Rouse, you mean? A. Yes, sir. "Q. Was that right after the Civil War? A. Yes, sir.

"Q. How old was Ned then? A. I could not tell you how old he was. I did not keep any

"Q. Was he a little boy? A. I was up above I used to see town on the Brummett farm. Jennie carrying him around.

An old gentleman named John Matthews, who had superintended a great deal of pub-record. lic work in the years gone by and had employed Thurston for many years, testifies in substance that Ned was the son of Thurston and Jennie under a customary slave marriage, and that Thurston recognized Ned as his son. Several other persons give evidence to the effect that Thurston recognized Ned as his son.

On the other side, a very old colored man named Nicholas Barrett testifies that he and Thurston were fellow slaves on the same farm for some years before the war, and that he was a chum and associate of Thurston, and that Thurston was married to a woman named Lydia Jordan with whom he lived up to the time he went to the army in 1864, which, if true, proves that Thurston was not wedded to Jennie, the mother of Ned, until some time after the war, and that Ned was not the child of Thurston. This old colored man was asked:

"Q. Did he (Thurston) live on the same farm you lived on? A. Yes, sir; on the same farm, up here above town (Henderson).

"Q. Did you know anything of him living with a negro woman by the name of Lydia Jordan? A. Yes, sir; that was his first wife.

"Q. Do you know about when he lived with her? A. He lived with her before he went to the army.

"Q. Did he live with Aunt Lydia up to the time he joined the Yankee army? A. Yes, sir. "Q. Did they have any children, Lydia and Thurston Cabble? A. Had three. *

*

"Q. Now, I believe you have stated they lived together up to the time Thurston went to the army? A. Yes, sir.

"Q. Did you know a negro, who lived here until she died, by the name of Jennie Rouse? A. Yes, sir.

"Q. Did you know of any children she had? A. Yes, sir.

"Q. Did she have two children, one by the name of Ned Rouse? A. Yes, sir.

"Q. And the other two by the name of Robert Cabble and Mattie? A. Yes, sir; Thurston's.

"Q. You do not know anything about whether he was living with Jennie immediately before he went to the army? A. No, sir; I don't think he was living with Jennie when he went to the army. He did not marry Jennie until

after he came back.

"Q. I am not asking about marrying her. A. He did not live with Jennie.

"Q. How could you tell anything about it if you were living in the country and Thurston in the city? A. We used to meet each oth

er.

"Q. Had Ned been born at the time Thurston went to the army, or was he born afterwards, or do you know when he was born? A. He was born before Thurston married Jennie, you know. "Q. Before Thurston married Jennie? A. Yes, sir.

"Q. Do you know how long before Thurston married Jennie? A. No, sir; I do not know. I could not tell you.

"Q. Was he not a baby at the time Thurston married Jennie? A. I am not certain about it, but I think he was a good size boy when Thurston married Jennie."

This witness, as well as several others who testified, is quite certain that Ned is not the son of Thurston and stated that Thurston did not recognize Ned as his son, but declared he was not his son.

[1, 2] The evidence given by Mary Payne and Nancy Bibbs is of an affirmative nature, direct and positive, while that of the old colored man Nicholas Barrett is largely negative in its nature, rather indefinite and uncertain. Affirmative evidence is entitled to greater consideration than negative, everything else being equal; and, applying this rule to the evidence offered in this case, we have little trouble in concluding that the decided weight of the evidence is with the appellant against whom the chancellor found the facts. Without doubt, the weight of the

evidence supports the contention that Ned | 2. WORK AND LABOR 10-RECOVERY FOR was the son of Thurston and Jennie, born SERVICE UNDER VOID CONTRACT. after they had entered into a customary marriage and were living together as husband and wife. After they had so lived for some years and had three or more children, they again appeared before a minister of the Gospel, who for the second time solemnized the rights of matrimony between them.