
    Beasley v. Gouge, et al.
    (Decided December 2, 1910.)
    Appeal from Brant Circuit Court.
    Hu-sband and Wife — Action by Creditor of Deceased Husb'and- to Set Aside Deed to Wife. — In ian action (by a creditor of a deceased bus-band to set aside- a conveyance made by him to his wife, on the ground that his debt was created prior to the conveyance; Held, that the husban-d could not h-ave h-ad the conveyance to his wife set aside in his favor if he had undertaken to do so, and it will not be pretended that the court intended by the loose language used, to deprive her of a property right in favor of her husband, without affording her an opportunity of defending the case as to him. This being true, the conveyance as to him w-a-s valid, and his subsequent creditor has no cause to complain of it and no right to set it aside.
    C. H. BEASLEY for appellant.
    W. D. GRAY and R. L. WEBB for appellees.
   Opinion op the Court by

Chief Justice Barker

Affirming.

L. P. Gouge, 'in his lifetime, was the owner' of two hundred and fifty-eight acres of land in Grant county, Kentucky. In 1886 he conveyed all of his land to his wife, Calista Gouge, without valuable consideration therefor. In 1888 certain of his creditors, whose debts were created prior to the conveyance, filed a suit in the Grant circuit court against the grantor and his wife for the purpose of having the conveyance declared fraudulent as to their debts, under the provisions of section 1907, Kentucky Statutes. Pending the litigation, L. P. Gouge, evidently under the apprehension that the conveyance would be set aside and the lands subjected to the debts of his creditors, amended his answer and claimed as against them a homestead in the lands conveyed to his wife, and prayed that, in case the conveyance should be set aside, his right of homestead be upheld and land of the value of one thousand dollars be allotted to him. When the case came on to be heard, a judgment was rendered holding the conveyance fraudulent as to the debts of the plaintiffs and setting it aside as to them. The claim of homestead was also upheld, and the court provided in the judgment that the fifty-seven acres of land involved in this litigation be set aside as the homestead of L. P. Gouge. Afterwards it appears that the land not included in the homestead right was sold, and the proceeds fully paid off the claims of all the creditors whose debts existed prior to the conveyance involved in the litigation. L. P. Gouge’ and wife remained on the homestead during the remainder of his life, and after his death his wife remained in possession of it until her death. Mrs. Gouge left a last will and testament, by which she devised all of her property, including the fifty-seven acres in question, to her children, T. 0. Gouge and William L. Gouge, who are the appellees here.

After the death of Mrs. Gouge, the appellant, C. H. Beasley, who is a creditor of L. P. Gouge, instituted this action to subject the homestead to the payment of his claim, upon the theory that, by the terms of the judgment setting aside the conveyance, the homestead belonged to L. P. Gouge, his debtor; that while his widow, Calista Gouge, had a right to the use of the homestead during her life, at her death it was subject to the debts of her husband. Upon the trial of the case the circuit judge dismissed the petition, and from that judgment C. PI. Beasley has appealed.

We are of the opinion that the theory of appellant can not be upheld. His claim was created two years after the conveyance of L. P. Gouge to his wife, and,therefore, it was valid as to his debt. The statute, section 1907, Ky. Stats., as to subsequent creditors, provides that, although the conveyance be adjudged to be void as to a prior creditor, it shall not be deemed to be void as to subsequent creditors or purchasers. It is true, it is recited in the judgment setting aside the conveyance, that L. P. Gouge was entitled to a homestead in the land as against his creditors who were suing him, but the court did not mean that, as between Gouge and his wife, the conveyance involved in the litigation was invalid; nor did he by his judgment set that conveyance aside except in so far as it militated against the interest of the creditors whose claims were created prior thereto. The language of the judgment on this subject is as follows: * * And it is

adjudged that said sale and conveyance was voluntary and fraudulent as to the debts of plaintiff, T. G. Gouge, and the defendants, W. W. Dickerson, executor of Marietta Kendall, and L. Cavanaugh, and the same is in so far as it affects their interest set aside and cancelled.” L. P. Gough did not ask that his homestead right be upheld as against his wife, and no such idea appears in the record. All that was prayed for by him was that his right of homestead be upheld as against his suing creditors; and this prayer was granted. But it was clearly not the intention of the court to set aside the conveyance any further than the interest of the prior creditors required. It is true the language of the judgment in regard to the homestead was loose and inaccurate. It really should have been said that, inasmuch as L. P. Gouge was the owner of a homestead as against the plaintiffs, the conveyance was good to that extent. But this was what the court meant by the language actually used, and this was all that was justified by either the law or the pleadings.

The conveyance from L. P. Gouge to his wife was valid as to the debt of appellant Beasley, because it was created subsequently to the conveyance. The court would not, at his suit, have set the conveyance aside; and he has no greater rights now than he would have had if he had instituted an action to impeach the validity of the conveyance in the lifetime of L. P. Gouge. L. P. Gouge could not have had the conveyance to his wife set aside in Ms favor if he had undertaken to do so, and it will not be presumed that the1 court intended by the loose language used-to deprive Mrs. Gouge of a. property right in favor of her husband without affording her an opportunity of defending the case as' to him. Keeping in mind the purposes for which-the suit of L. P. Gouge’s creditors was instituted, and-the issues raised therein, it is clear, as said before, that the court did-not intend, in favor of her husband, to deprive Mrs. Gouge of any ■rights acquired under the conveyance. This "being true, the conveyance as to him was valid, and his subsequent creditor has no cause to complain of it, and no right to have it set aside.

Judgment affirmed.  