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268 A 584959
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COURT OF APPEALS OF KENTUCKY
WINTER TERM, 1857.
STEVENS AND OTHERS,
VS.
PORTER & SONS AND OTHERS,
Brief for App - Độ
1
WM. B. KINKEAD,
onte
Appeal from the Kenton Circuit Court..
MUNGER & ORONINGER Print. Covington Ky.
Appellants.
Į
Appellees.
For Appelles.
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UNIVERSITY OF CHICAGO
LIBRARIES
266892
MARCH 1930
COURT OF APPEALS OF KENTUCKY.
DECEMBER TERM, 1857.
STEVENS AND OTHERS,
VS.
Appellants.
Brief for Appellees.
PORTER & SONS AND OTHERS,
Appellees.
IN examining the Record in this case, the attention of the
Court will doubtless be attracted to the extraordinary devel-
opments which were made in the progress of the cause in the
Court below, the means which were resorted to for the purpose
of delaying a hearing, and particularly to the novel circum-
stance of the preparation of the case with a view to an issue
raised by the defendants themselves, and after that issue had
been met and overcome, the sudden presentation of a new de-
fense utterly inconsistent with the first.
The petitions of the plaintiffs below were filed in March,
1855, attaching the property in controversy, and alleging that
Stodard C. Stevens, while in embarrassed circumstances, had
purchased the two lots of ground numbered 1 and 2 in the
2
cily of Coving on, that he had erected thereon a fine and ex-
pensive dwelling-house, in which he was then residing and had
continued to occupy from the time of its completion; that all
the money which had been paid for the ground and improve-
ments had been furnished by said Stodard C. Stevens; that
the titles to said lots were made to two young clerks in the
employment of said Stodard C. Stevens, for the purpose of
covering up his property and to cheat and defraud his cred-
itors.
·
In June, 1855, these petitions are answered by the defend-
ants, Stodard C. Stevens and the two clerks, John C. Grierson
and Thomas C. S'evens, and they alledge that the property
had been purchased by T. C. Stevens and John C. Grierson
with their own means and for their own purposes.
This, then, was the issue between the parties, and for a
twelvemonth they are engaged in preparing the cases with a
view to the questions raised by the petitions and answers, the
plaintiffs attempting to show that Stodard C. Stevens had pur-
chased the lots himself and paid for them out of his own
means, or rather the money of his creditors; that the im-
provements upon the lots had been contracted and paid for
by him; that the two young clerks had not the means of pay-
ing for the property and improvements.
The attention of the Court is now invited to the testimony
in the Record, from which it will appear that the plaintiffs be-
low sustaines in the fullest manner every issue.
The deposition of Mann, who sold lot No. 2, shows that he
was applied to by Stodard C. Stevens in regard to the pur-
chase, and that up to execution of the deed, supposed the sale
to be to him. When directed to make the deed to Thomas C.
Stevens, he declined doing so, because he thought him an
infant, and was unwilling to take his notes. The deposition
of Tweed proves the same thing. Lewis proves that Stodard
3
C. Stevens applied to him in regard to the purchase of lot No.
1, the deed to which was made to Grierson.
Here, then, it is shown that Stodard C. Stevens was the real
purchaser of these lots; that he commenced and carried on
the negotiations for their purchase; that the vendors know
no one in the transactions but S. C. Stevens un'il the convey-
ances are to be executed, when, to their surprise, these two
young clerks of S. C. Stevens are brought forward-two young
men, as the Court will see in the progress of this argumen´,
who were utterly without means and who relied for a scanty
support upon salaries obtained from this same Stodard C.
Stevens.
That the improvements upon these lots were contracted
and paid for by this same Stodard C. Stevens is incontestably
established. The depositions of every mechanic engaged in
these improvements are in the Record, and, without an excep-
tion, they state that the contract was made by Stodard C. Ste-
vens and the money paid by him.
Martin, who furnished the lumber, states this. Heimbrook,
who did the stone-work, does the same. Oakes, who did the
painting, says so, and that Stodard C. Stevens paid him $400.
Lowry, the carpenter, says the same thing, and that S. C. Ste-
vens paid him $700, and that he saw him paying the hands on
Saturday nights. Beam, who did the tin-work, says the same.
Smith, who furnished hardware, says the same, and that S. C.
Stevens always spoke of the property as his own.
In addition to this, it is proved by the tax-collectors that S.
C. Stevens has always paid the taxes. See depositions of
Wood and Summerwell.
This surely is testimony enough, but this is not all.
It is shown by the depositions of Coldwell, Sylvester, New-
land, Baker, Smith, and Martin, that S. C. Stevens always
spoke of this property as his own; and Coldwell states that
4
"Stodard C. Stevens always told him that the property belonged
"to him until January last, at which time he said he had put
"the property out of his hands to avoid its being seized for a
"debt he owed, which was not a just debt." It is not often that
men are as candid as this in owning up to a fraudulent con-
veyance; but we presume Stodard tho't that, in saying he had
put the property out of his hands to avoid the payment of an
unjust debt, he made it all right! The gentlemen on the
other side may say that no weight is to be given to these con-
fessions of Stodard, because he occasionally indulged a little
too freely in "the ardent." To this we reply, In vino est ver-
itas—If wine will bring out the truth, why will not whisky?
But, again, the amended answers of Grierson and Thomas
C. Stevens both admit that Stodard paid $1,600 towards the
purchase of lot No. 2, and it is further proved that both these
young clerks (who, forsooth, according to the first answer
filed in June, 1855, purchased and paid for these lots and im-
provements with their own means) stated, while these improve-
ments were being erected, that Stodard was paying for them
himself. Harper says that he heard Thomas C. Stevens say
"that Stodard was taking so much money out of the concern to
pay for these improvements that the firm was always broke
"and could not go on."
66
Winall says he "heard Thomas C. Stevens and Grierson say
"that Stodard was spending too much money in Covington in
"these improvements."
It is also proved that these young clerks had no surplus
means that their salaries were barely sufficient for their
maintenance. See the depositions of Harding and Harper.
Grierson's own deposition (which, by the way, is one of the
rarest specimens extant) put his surplus at $700 or
$800, which he says he always carried in his pocket! This
Court, then, can not enter'ain a doubt that, up to this
5
case.
point in the proceedings, the plaintiffs below established their
The testimony which we have quoted (and there is
more to the same purport) incontestably shows: 1st. That
the lots were purchased and paid for by Stodard C. Stevens;
2d. That the two young clerks, Thomas C. Stevens and Grier-
son, were without the means to pay for the property; 3d. That
these young men both stated that the improvements were
being made and paid for by Stodard; 4th. Not a dollar has
been shown to have been paid for the lots or improvements
which did not pass through the hands of Stodard; 5th. We
have the statement of S.odard Stevens himself that he did
make a fraudulent conveyance of the property.
Here, then, the issue made by the defendants was against
them, and the fraud clearly established. At this stage of the
proceedings, after several months spent in meeting the issue
presented by the defendants themselves, and which they had
used every effort to sustain, we are suddenly and for the first
time told the answers filed in June, 1855, are incorrect; that
it is a mistake about T. C. Stevens and Grierson, the young
clerks, having purchased these lots and erected the house with
their own money, but that the fact is, the property was pur-
chased with the money of the wife of S. C. Stevens, and that
these accommodating young gentlemen now hold the property
as her trustees; that S. C. Stevens, it is true, had advanced
considerable sums of money towards paying for the improve-
ments, but that this was done while he was solvent and had a
right thus to make provision for his wife.
The case had been prepared and he plain'iffs below press-
ing for a hearing, when this new phase is presented, so utterly
inconsistent with what had heretofore appeared in the record.
It would have one offect-to delay the case-and this was
perhaps all the defendants hoped for. The plaintiffs are, of
course, compelled to bring Mrs. Stevens before the Court,
MO
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which they did a once by an amended petition. This
amended petition contains certain important and material
allegations, to which we invite the particular and careful at-
tention of the Court. To this amended petition Mrs. Stevens
filed her answer, and the plaintiffs at once submitted the case.
The only possible hope of the appellants rests upon this
claim of Mrs. Stevens, as set up in her answer, and the imme-
diate submission of the case upon the amended petition and
answer being just filed. It will be contended that, taking
the answer of Mrs. Stevens as true, the decree against her is
erroneous; that the answer shows that she had expended
about $4,000 in the purchase and improvement of this prop-
erty. On the contrary we contend that, even taking the an-
swer of Mrs. Stevens as true, still the decree of the Circuit
Judge is entirely correct.
-
The amended petition, by which Mrs. Stevens was brought
before the Court, alledges "that the pretended interest of Mrs.
Stevens is fraudulent; that she had no money independently
of her husband; that the title to the property was conveyed
to Grierson and Thomas C. Stevens with the fraudulent pur-
pose of cheating the creditors of Stodard Stevens; that about
the time of the conveyances to T. C. Stevens and Grierson
Stodard Stevens purchased other valuable property in Coving-
ton, and caused the same to be conveyed to one R. Cohoon
for the benefit of his wife; that since the institution of this
suit the said Stodard Stevens and his wife, fearing that this
property would also be attached, disposed of the same for four
hundred and eighty acres of land in the State of Illinois,
which was conveyed to Mrs. Stevens, and that any money
which Mrs. Stevens may have had, and much more, was se-
cured to her by the conveyance of the Illinois lands.'
99
Now, then, take the answer of Mrs. Stevens as true, and
what does it show? Why, that although she, may have fur-
nished about $4,000 towards paying for the property in ques-
tion, that she had gotten it back, and more, in the Illinois
land, which is proved to be worth $5,000. See deposition of
McCormick. If, then, she has had her money secured to her,
and more than she says she advanced, of what can she com-
plain?
The allegations of the amended petition, which are not de-
nied by the answer of Mrs. Stevens, must be considered as
true. It is so expressly provided in the Code. See sec. 153.
Admitting, then, that she had money of her own, she acknow-
ledges that it was fully secured to her in this land in Illinois.
But the answer of Mrs. Stevens shows that she never had
but about $1,000 from her father's estate. She says that the
balance of the $4,000 she received from boarders. All she
had, then, invested of money coming to the hands of her hus-
band (and the proof shows that every dollar passed through
his hands) became his absolute property, and his creditors can
subject to their debts. See 2 Dana 437, 10 B. Monroe 245,
and 14 B, Monroe 260.
She has already a provision secured to her in the Illinois
lands, placed beyond the reach of her husband's creditors,
and now she says she trusts the Chancellor will not disturb
her in her possession of this property also. Five thousand
dollars worth of property in Illinois is put beyond the reach
of her husband's creditors, and now she thinks this valuable
property in Covington should also be reserved to her.
It may be presumed that for a long time before she set up
her claim, she sat by and witnessed the fraudulent effort of
T. C. Stevens and Grierson to shield this property from her
husband's creditors, and when it became apparent they would
fail, she comes forward and appeals to the spmpathies of the
Chancellor. She does not present one of these meritorious
cases that the Chancellor can not resist. Her own statement

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of the foundation of the claim shows its own futility. But we
shall not insist on these manifold evidences that this claim of
Mrs. Stevens is a mere fraudulent device to gain time and to
protect the property from her husband's creditors.
But she claims that though the deeds were made to T. C.
Stevens and Grierson, there is a resulting trust for her benefit.
Now, we have shown abundantly that as to T. C. Stevens and
Grierson, their deeds were fraudulent. We have shown a con-
siderable portion, if not all, the money was paid out by S. C.
Stevens; that he was in anticipation of perhaps insolvency,
when he caused the deeds to be made to these young mer
Now, we say that, under the Revised Statutes, there is no re-
sulting trust to her, even if she had paid the purchase-money,
for the deeds to T. C. Stevens and Grierson are absolute on
their face. See Rev. Stat., p. 542. She is not, then, injured,
and can not complain of the judgment of the Court, She
can not set up or claim any interest in the property as result-
ing to her.
WM. B. KINKEAD,
Attorneys for Appellees.
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