Zeb A. Stewart and James Park, both of sion, or from other circumstances, that the deLexington, and Buford Williams, of Harlan, lusion, hopes, and fears, under the influence of for appellants. which the original confession was obtained, Chas. I. Dawson, Atty. Gen., and Thos. B. were entirely dispelled." Roberson on KenMcGregor, Asst. Atty, Gen., for the Common-tucky Criminal Law and Procedure, vol. 2, p.

wealth.

THOMAS, J. Upon their joint trial in the Harlan circuit court, under an indictment accusing them of grand larceny (stealing cigarettes from the depot at Baxter, Ky.) the appellants, Wheeler Bruce and James Russell, were convicted, and their punishment fixed at confinement in the state penitentiary for a period of two years each. Their joint motion for a new trial was overruled, and they have apealed. The chief ground relied on for a reversal of the judgment pronounced upon the verdict of the jury is error of the court in not sustaining defendants' motion for a directed verdict, acquitting them of the charge. As grounds for the main contention some collateral questions are presented by the record, which, so far as necessary to a disposition of the case, will be briefly noticed as we proceed with the opinion.

1065.

There is nothing in the record to show that the hopes of the accused, which were inspired by the promises of Officer Lyttle, were in any wise dispelled when he made the statement in the presence of the county judge. Russell made no sort of confession. to the officer, as we gather from the record, nor did he make any statement in the nature of a confession of any material fact in the presence of the county judge or other officer. About one week after his examining trial, and while he was incarcerated in the county jail, one McDaniel, who styled himself "Inspector Police L. & N. R. R. Company," called upon and had a conversation with Russel! at the jail, which conversation is thus related by the witness:

"Why, he said he and Mr. Bruce came to Baxter on the local, which is a train, that handles the local freight from Page to Harlan, and they got off, he said around the depot, and Mr. Bruce left him for a short period of time. When he came back he had a bunch of cigarettes or something, he didn't know what it was, but it developed to be cigarettes, and he gave them to him for him to keep in his possession while he went to make a bargain to sell them, and while Bruce was gone to bargain a sale of them, the officers caught Bruce and got him, and that they got them off of the platform at the depot at Baxter. He what he knew about it, and where the other

[1-3] The commonwealth introduced Alex Lyttle, a policeman, who testified that he arrested defendant Bruce without a warrant for the supposed offense of selling cigarettes without a license; that immediately Bruce told him that Russell, who was some distance up the railroad track, had some cigarettes, and the officer soon found him with two carin at but on trial he would tell tons of them. Witness promised Bruce that if he would tell about the cigarettes he would be released. Bruce thereupon said that one Buchanan had some of the cigar-75 cartons were, but he wouldn't tell me." ettes, and the officer found 23 cartons at Buchanan's store, but the latter said that he bought them from a negro, and the court properly refused to allow him to state what the negro said with reference to them at the time of the purchase. What Bruce told the officer concerning the cigarettes was properly excluded from the jury, since it was improperly obtained through the promise of immunity, and without its being withdrawn before the guilty statement was made by the accused. Within a very short time after his arrest Bruce was taken before the county judge, who was introduced by the commonwealth, and testified that Bruce stated to him (while not on trial) that "we didn't get them [cigarettes] out of a box car; we got them off of the platform." This statement was objected to, but the objections were overruled, which we think was error, since the commonwealth failed to show that the inducement for a confesson, held out by Officer Lyttle a very short while before, was not still operating upon the mind of the accused. The burden was on the commonwealth to show

"from the length of time intervening, or from proper warning of the consequences of confes

Since,

The witness said that no promises, threats, inducements, or other influences were employed by him to procure the confession from the defendant Russell, which, if true, would remove all legal objections to its introduction, unless perhaps the officer Lyttle had also promised him immunity the same as he did the defendant Bruce, and which promise had not been withdrawn or otherwise dispelled before the confession was made. however, the record is not clear as to whether Lyttle offered any inducements to Russell we are unable to determine whether his confession made to McDaniel was admissible. [4] Upon the fact of asportation, the only evidence offered by the commonwealth was that which we have related, and which is, as we have seen, an incompetent confession. by the defendant Bruce and a doubtful one by the defendant Russel!. Whether there were ever any cigarettes actually stolen from the depot at Baxter (as charged in the indictment), or from any other place, the record is entirely silent. The officer, Lyttle, did not pretend to testify as to the fact of any cigarettes having been stolen from the depot or elsewhere, and the county judge did not

(232 S.W.)

mention it, except the indefinite reference | introduced by the commonwealth was his thereto made in the incompetent confession of defendant Bruce, which only purported to say that "we got them [cigarettes] off the platform," but whether rightfully or feloniously is neither stated nor intimated therein. The only other evidence offered by the commonwealth to prove the corpus delicti was a statement, made by the witness McDaniel, to this effect:

(192 Ky. 15)

DANIELS v. GOFF et al. (two cases). (Court of Appeals of Kentucky. June 14, 1921.)

conveyances

the son of J. P. and Mary Daniels. In August, 1918, appellee Goff recovered in the Pike circuit court a judgment for costs against J. P. Daniels in an action which Daniels had instituted in October, 1916, contesting the right of Goff to the office of school trustee. The execution was levied on two tracts of land in Pike county as the property of J. P. Daniels, and they were sold under the execution and Goff became the purchaser.

1. Fraudulent 300(1)-Evidence held to show conveyances voluntary. In equitable actions to set aside sale of two tracts of land under execution and to enjoin the sheriff from making a deed to the purchaser thereunder, on the ground that plaintiffs and not the judgment debtor were the owners of the land, evidence held insufficient to show that the judgment debtor was holding either tract of land in trust for plaintiffs, showing rather that his conveyances to plaintiffs were voluntary and made without consideration, and therefore void as to his existing liabilities, un-of land in question at the time of the levy der Ky. St. § 1907.

2. Fraudulent conveyances 218-As respects right to avoid voluntary conveyances, "liabilities" include existing obligations not technically debts; "existing liabilities."

These are two equitable actions, one by Mary Daniels against Goff and the sheriff, seeking to set aside the sale and to enjoin the sheriff from making a deed to Goff thereunder, upon the ground that she and not J. P. Daniels was the owner of one of the tracts

and sale. The action of David Daniels seeks similar relief against the same parties for the same reason as to the other tract of land levied on and sold. The answer and counterclaim of Goff asserted title under the execution sale to each tract, and attacked as fraudulent, voluntary, and without consideration the conveyances under which each of the plaintiffs claimed title from J. P. Daniels.

Ky. St. § 1907, providing every gift, conveyance, etc., made by a debtor without valuable consideration shall be void as to all his then existing liabilities, protects more than fixed and certain debts previously incurred by a grantor; "liabilities" including debts and indebtedness, but being broader, and including Upon a trial in the circuit court the chanin addition existing obligations, which may or cellor set aside the sherifs execution sale may not in the future eventuate in an indebted-as to each of the tracts of land involved, but ness, as a grantor's liability for costs in an election contest instituted by him prior to his conveyance, and "existing liabilities" embracing conditional or contingent obligations, which may or may not in the future result in indebtedness. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Liability; Second Series, Existing Liability.] 3. Execution

224-Court properly set aside sale of two tracts, where record shows sale of one sufficient.

Where it appears from the appraisement and the record that, if either tract of the judgment debtor's land sold on execution had been offered separately from the other, it would have been sufficient to pay the execution; the sheriff having failed to offer such tracts separately, the court properly set aside the sale.

adjudged to Goff a lien on each of them for the amount of his said execution, and adjudged an enforcement of the same. To that judgment the plaintiffs each excepted and prayed an appeal, and the defendant Goff likewise excepted and prayed an appeal, and the appellants having filed their transcript in this court, appellee Goff has prayed and been granted a cross-appeal.

On the 9th of February, 1898, Chaney and wife and others conveyed to J. P. Daniels and Mary Daniels, his wife, jointly a tract of land on the waters of Upper Cloe creek in Pike county, which is the tract of land involved on the Mary Daniels appeal. The title to this property so remained in them jointly until the 3d day of January, 1916, at which time J. P. Daniels is alleged to have conveyed his interest in the same to appellant Mary Daniels, his wife, in consideration of her interest in her father's estate and her interest in the Gilmore Justice tract of land. The appeals tract of land. That instrument bears date the 3d day of January, 1916, and the certificate of acknowledgment bears the same date. But the acknowledgment was taken by G. C. Daniels, another son of J. P. and Mary Daniels, the said G. C. at the time being a deputy county court clerk; but the said deed was not lodged for recòrd until the 1st day of October, 1917.

Appeals from Circuit Court, Pike County. Separate actions by Mary Daniels and by David Daniels against J. G. Goff and another. From the judgments, plaintiffs appeal, and defendant Goff cross-appeals, The appeals were consolidated. Judgments affirmed on original and cross appeals.

Willis Staton, of Pikeville, for appellant.
J. E. Childers, of Pikeville, for appellees.

TURNER, C. These two appeals involve practically identical questions, and were consolidated and heard together in the lower court, although separate judgments were entered, and they will be heard together here. Appellant Mary Daniels is the wife of J. P. Daniels, and appellant David Daniels is

As to the tract claimed by David Daniels, it appears that on the 14th of May, 1917, Nannie Hunter and her husband conveyed the same to J. P. Daniels in consideration of

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

(232 S.W.)

$150 cash in hand paid, and thereafter on [The cow appears to have been raised on J. P. the 1st day of June, 1917, J. P. Daniels and his wife conveyed the same tract of land to David Daniels, then an infant, in consideration of the sum of $150 cash in hand paid, and this latter deed was lodged for record on the 27th of September, 1917.

Daniels' farm and claimed by the infant David, but there is no satisfactory evidence that in truth and in fact the title to the cow was in David; and so far as the $100 subsequent payment claimed to have been made by David to his father is concerned, his evidence is that he paid it in timber which came off of the land in controversy; that is to say, he paid his father for his father's land by money received from the sale of his father's timber.

[1] It is sufficient to say of each of these claims that the evidence that J. P. Daniels in

The facts out of which the judgment for costs against Daniels grew were these: At the August election, 1916, Goff and Daniels were opposing candidates for school trustee in a subdistrict in Pike county; Goff appeared the winner on the face of the returns and received the certificate. Daniels, however, in October, 1916, filed his action contesting either instance was holding the tract of land the election of Goff, and after full prepara- in trust falls far short of being satisfactory, tion that action was tried in the Pike cir- and is most convincing that they were each cuit court in March, 1917, and it was therein voluntary conveyances by him and made adjudged that the whole election was invalid without consideration. Ky. Stats. § 1907, because of fraud, intimidation, and violence, provides: and each party was adjudged to pay his own costs. From that judgment Goff prosecuted an appeal to this court, and in June, 1918, that judgment was reversed, with directions to enter a judgment adjudging Goff to have been elected (Goff v. Daniels, 181 Ky. 18, 203 S. W. 853), and upon a return to the Pike circuit court it was so adjudged.

So that it will be seen that, long before his conveyance to David Daniels on the 1st of June, 1917, and the lodging of the same for record on the 27th of September, 1917, and long before his deed to his wife, dated January 3, 1916, was lodged for record on the 1st of October, 1917, J. P. Daniels had instituted his contest suit against Goff, and had thereby become liable to Goff, in the event of the latter's success for such costs as he might therein incur; in other words, when he instituted his action he was the title holder on the record of a one-half undivided interest in the tract of land conveyed to him, and his wife jointly, and during the pendency of his action he became the title holder of the other tract of land, which during its pendency he conveyed to his son David.

There is no contention by either of the plaintiffs that at the time of the two conveyances to them separately by J. P. Daniels they actually paid any consideration for the land conveyed, except as hereinafter stated. As to the Mary Daniels conveyance, the claim is that it was made to secure to her an interest in another tract of land which had been given her by her father years before.

As to the David Daniels tract, the claim is that his father in the first place bought the land for him, although he was at the time an infant, and paid the whole purchase price of $150, with the understanding that a cow which he (David) owned should be taken into the deal as a $50 cash payment, and that his father would convey the land to him upon the payment to him of the remaining $100.

"Every gift, conveyance, assignment, transfer or charge made by a debtor, of or upon any of his estate, without valuable consideration therefor, shall be void as to all his then existing liabilities."

And it is provided in section 496, Ky. Stats., that no deed or deed of trust or mortgage conveying title to real estate shall be valid as against creditors "until such deeds shall be acknowledged or proved according to law, and lodged for record.”

It will be seen, therefore, that at the time these two deeds were lodged for record the contest suit instituted by J. P. Daniels had been pending almost a year, that the costs in the circuit court had practically all been incurred by both parties, and that the appeal was at the time pending in this court; and the question appears to be, independent of the question of actual fraud, whether the costs which had already accrued, but which had not been finally adjudged when these deeds were put upon the record, and the costs which it was then known would necessarily accrue in the future, were existing liabilities of J. P. Daniels within the meaning of the statute quoted, although at that time it was not adjudged that he would have the same to pay.

Under section 496 it is clear that Goff was not required to take notice of either of the deeds until they were lodged for record, and up to that time he had a right to assume, because of Daniels' record title, that he was litigating with a party who would be good for the costs at the end of the suit, if he (Goff) were successful, and at that time, as we have seen, the costs had practically all been incurred.

[2] It seems reasonably clear that our statute, in the use of the words "all his then existing liabilities," meant something more than the fixed and certain debts which the vendor had theretofore incurred, or it would have used the simple and plainer expression

in Washington county of 64 acres. Thereaft er in January, 1878, Sweeney conveyed this 64 acres to his daughter, Lucy, and it was held that, although at the date of the conveyance to the daughter there was no fixed amount of indebtedness or liability of Sweeney to his ward, yet it was an existing indebtedness, and the 64 acres were thereafter subjected to the payment of that liability, the amount of which was subsequently to the conveyance fixed.

"debts" or "indebtedness" in lieu of the qualified in 1874 as the guardian of Sallie word "liabilities." The word "liabilities" Yankey. At the time he owned a tract of land includes debts and indebtedness; but it is broader, and includes in addition existing obligations, which may or may not in the future eventuate in an indebtedness. For instance, one may be at the date of a conveyance by him the surety of another which he never contemplated he would have to pay, and yet it would be an existing liability whether he ultimately had it to pay or not. “Existing liabilities” is a sufficiently broad and comprehensive term to embrace conditional or contingent obligations, which may or not in the future result in indebtedness. While the difference between existing liabilities and existing debts does not seem to have been clearly pointed out in any opinion of this court, the distinction, as we have undertaken to make it, runs through the opinions. For instance, in the case of Garrard v. Garrard, 7 Bush, 436, Garrard and his prospective wife entered into an antenuptial contract whereby she relinquished her prospective right of dower in his estate, but in lieu of the same it was stipulated that he should give her such property or annunity out of his estate as might be sufficient to support her comfortably during her life or widowhood. He died without having made any such provision for his wife, having previously conveyed all of his landed estate. to his children. The wife filed a suit in equity, alleging that the administrator had refused to make provision for her support as provided in the agreement, and alleging that the conveyances to the children were without valuable consideration, and asking that her claim for support out of the decedent's estate be enforced, and this court, in the course of its opinion, said:

In the case of Sterk v. Redman, 166 Ky, 693, 179 S. W. 577, Sterk and Redman on the 14th of December, 1912, entered into a contract whereby Sterk agreed to pay Redman for staves of certain dimensions thereafter to be delivered. On the 29th of January, 1913, Sterk conveyed without consideration all of his property to his wife. After the conveyance to his wife staves were delivered to Sterk under the terms of the contract made before the conveyance, and this court held that, the liability having grown out of the contract, which was in existence at the time of Sterk's conveyance to his wife, the latter was void as to the liabilities growing out of that contract, although part of the staves had been delivered after the execution of the conveyance.

Nor do we see that any distinction can be drawn between an existing liability growing out of a contract previously entered into and an existing liability by operation of law growing out of the voluntary act of the debtor. Here Daniels voluntarily instituted against Goff in October, 1916, his contest suit, and he did that with the knowledge that the costs of that suit would have to be paid by one or the other, and that if he were unsuc"The obligation of Thomas L. Garrard, Sr., cessful he would be required to pay Goff's to make the stipulated provision in lieu of costs, and before the record title to these two dower, though conditional and dependent on his pieces of land was changed Goff had actuwife's surviving him, was at the date of the ally incurred most of the costs necessary conveyances an existing liability, and as it satisfactorily appears that the deeds to the in that litigation; and we therefore hold appellants were made without any valuable con- that there was an existing liability upon sideration, they were embraced by the provi- the part of Daniels to Goff at the time each sions of section 2, chapter 40, Revised Stat- of these deeds was filed for record, even utes, and void as to the claim of the appellee, though that liability was contingent or conwhich in a court of equity were properly en-ditional upon Goff's success in the litigation, forceable against the land in the possession of and that therefore each of the deeds, being the appellants."

There the court plainly held that the obligation of Garrard to provide for his wife's support out of his estate, although contingent upon her surviving him, having been in existence at the time of his conveyance to his children, was at that time an existing liability as contemplated by our statute, and was enforceable as against the children after his death, although only a contingent or a conditional obligation at the time of his conveyances to them.

In the case of Yankey v. Sweeney, 85 Ky. 55, 2 S. W. 559, 8 Ky. Law Rep. 944, Sweeney

voluntary and without consideration, was void as to Goff's execution for costs.

As to the cross-appeal, and the claim by the appellee that the court erred in not adjudging him the title to these two tracts of land, it is only necessary to say that the sheriff's report of sale shows that each of these tracts of land was levied upon as the property of J. P. Daniels, and that they had been previously appraised at $2,150, and that they were knocked off to Goff for something less than $100, presumably the amount of his debt, interest and costs.

[3] The two reports of sale filed in the two