
    Ray v. Thomas, et al.
    (Decided November 11, 1910.)
    Appeal from Graves Circuit Court.
    Fraudulent Conveyance — Secret Trust — Subsequent Effort to Reclaim Property- Conveyed. — Tbe rule is well settled in Kentucky that if one in order to defraud his creditors conveys or has conveyed property to another -in secret trust for his own use, he cannot afterwards reclaim the property if the vendee chooses to hold it.
    WEBB & WEAKS for appellant.
    W. B. STANFIELD for appellees.
   Opinion of the Court by

Chief Justice Barker

Reversing.

Many years ago, J. H. Thomas took three orphan children to raise, he being their nncle by marriage. Their names are as follows: D. T. Crockett, William Crockett and their sister, A. C. Crockett, how A. C. Ray. On October 18th, 1880, D. T. Crockett bought from W. B. Pryor and wife fifty-nine and one-third acres of land, upon which he and his brother opened a farm and built houses, and their adopted father, J. II. Thomas, and his wife moved upon this land, and with their adopted children lived together as one family. Afterwards, D. T. Crockett married and moved to a farm belonging to his wife, after which time the wife of J. IT. Thomas died and the appellant, his adopted daughter, remained’with him upon the farm and kept house for him. Updn the 3rd day of March, 1886, D. T. Crockett and wife conveyed the 'farm to appellant for the recited consideration of four hundred dollars in money, and that J. TI. Thomas was to have a home on the farm as long as he lived. After this deed was made, J. H. Thomhs married the appellee, Laura Thomas, who came to live with him on the farm; whereupon the appellant, A. C. Ray, and her husband, IT. J. Ray, moved awav and set up housekeeping for themselves, leaving J. H. Thomas and his wife in possession of the farm, where they lived until Thomas died in 1909.

After the death of J. H. Thomas, this suit was instituted against his wddow, Laura Thomas, by appellant, A. C. Ray, who alleged in her petition that she was the owner and entitled to immediate possession of the property under the deed from her brother, D. T. Crockett. The appellee, Laura Thomas, filed an answer, denying all of the material allegations of the petition and then alleging that the land belonged to her husband, J. IT. Thomas, at the time of his death; that he acquired title to the land by adverse possession. A reply having placed in issue the title of J. H. Thomas by adverse possession, the issues were completed. A trial before a jury resulted in a verdict in favor of the appellee, Laura Thomas. From the judgment based upon this verdict, A. C. Ray is here on appeal.

We are of opinion that the trial court should have sustained the plaintiff’s motion, at the close of the testimony, for a peremptory instruction to the jury to find for her. There was no evidence adduced which tended to show that J. H. Thomas ever held the property adversely to either D. T. Crockett or his vendee, Mrs. Ray. Thomas went upon the farm with D. T. Crockett, who had purchased it from W. B. Pryor and wife, as the deed from Pryor and wife to him clearly shows. In 1886 D. T. Crockett, with the knowledge, consent and approval of Thomas, conveyed the land to his sister, Mrs. Ray, providing a home for the stepfather on the property for his life. The parties themselves construed, and .in this way we think they were correct, that J. H. Thomas took a life estate in the property under the deed from D. T. Crockett to A. C. Ray. It in no wise militates against the claim of Mrs. Ray that it was shown on the trial that J. H. Thomas continued to live upon the property during his natural lifetime and to exercise every act of ownership which could be exercised with reference to it. This was exactly what he had a right to do, and which he should have done; but, instead of holding adversely to Mrs. Ray, his holding was amicable, ¿nd his possession was her possession. In the case of Davis and Others v. Willson, 115 Ky. 639, wo said:

“That the life tenant does not hold adversely to the remainderman is so elementary as hardly to need citation of authority.”

There was no evidence adduced which tended to show that J. IT. Thomas had any idea of holding adversely to his adopted children. On the contrary, at least one witness for appellee testified that he said he had a life estate only in the property.

The evidence conclusively shows that D. T. Crockett purchased the property from Pryor and wife with his own money, and there is nothing to- support the suggestion in the brief for appellee, that Thomas really purchased the property and placed the title in his adopted son’s name to prevent his creditors from subjecting it to their claims. But this, if it had"been true, would not have availed him. as the rule is well settled in Kentucky that, if one, in order to defraud his creditors, conveys or has conveyed property to another in secret trust for his own use. he can not afterwards reclaim the property if the vendee chooses to hold it. Section 2353 of the Kentucky Statutes provides that “when a deed shall be made to one person, and the consideration shall be paid by another, no use or trust shall result in favor of the latter.” * * * But, as said before, the evidence clearly showed that D. T. Crockett purchased the property in good faith, and it was conveyed to him by deed in 1880. In 1886, Crockett and wife conveyed the property to Thomas for life, with remainder to the appellant. This being true, it follows that, upon the death of Thomas, his life estate was at an end, and his widow, the appellee, had no right or title to it.

For these reasons the judgment is reversed for a new trial consistent with this opinion.  