Opinion
No. 5621
Submitted October 26, 1926.
Decided November 9, 1926.
Error to Circuit Court, Mingo County.
Suit by J.N. Damron, administrator of John Damron, deceased, against J.W. Allen and others, in which the First National Bank of Louisa, Ky., intervened. Judgment for plaintiff, and intervener and defendants bring error.
Modified and affirmed.
Rhodes Daugherty, for plaintiffs in error.
James Damron, for defendant in error.
This is a suit in chancery instituted by J. N. Damron, as administrator of John Damron, deceased, to set aside a conveyance by the defendant J. W. Allen of his real estate in fraud of his creditors; to recover a decretal judgment against the said defendant on a promissory note for $1500.00, dated January 12, 1923, and payable to the order of said John Damron one day after date; and to sell the said real estate in satisfaction thereof.
The First National Bank of Louisa, Kentucky, filed its petition in the cause, pleading a judgment in its favor of $1577.06 against the defendant J. W. Allen, and joined in the prayer of the plaintiff for similar relief.
Upon the bill of plaintiff, the petition of the First National Bank of Louisa, the answer of the defendant J. W. Allen, and depositions taken and filed, the circuit court adjudged, ordered and decreed: (1) that the plaintiff recover of the defendant J. W. Allen the sum of $1500.00 with interest from January 12, 1923; (2) that the First National Bank of Louisa also recover of said defendant the sum of $1577.06 with interest from April 20, 1925; and (3) that the said conveyance be set aside and the real estate of the said defendant be sold in satisfaction of said judgments.
The defendant J. W. Allen, appealing from the decree of the circuit court, complains particularly of the judgment in favor of the plaintiff on the ground, among others, that the note on which it was recovered had not been appraised as required by Section 12, Chapter 85, Code, which provides that no judgment shall be rendered upon any note, bond or evidence of debt belonging to the estate of a decedent "unless and until the same shall be first shown to have been listed by the appraisers".
The note not having been appraised, as required by the statute, the decree in so far as it renders judgment in favor of the plaintiff is unauthorized and to that extent must be reversed; but in all other respects the decree will be affirmed.
Modified and affirmed.