Id. Similarly, in Gillardi v. Henry, 272 Ky. 188, 113 S.W.2d 1158 (Ky. Ct. App. 1938), the Kentucky Court of Appeals rejected the defendants' untrustworthy and illogical narrative of the transfers at issue. Id. at 193, 113 S.W.2d 1158.
The relationship between Akin and Roberts extending over many years was at best unique and at worst bizarre. See Gillardi v. Henry, 272 Ky. 188, 113 S.W.2d 1158 (1938). The trial testimony neither suggests nor supports a finding that Roberts in any of his dealings with Akin acted in an eleemosynary manner.
§ 1911. "All such transfers as are herein declared to inure to the benefit of creditors generally shall be subject to the control of courts of equity, upon the petition of any person interested, filed within six months after the mortgage or transfer is legally lodged for record, or the delivery of the property or effects transferred." In the case of Gillardi v. Henry, 272 Ky. 188, 113 S.W.2d 1158, which dealt with a similar situation, the court said [page 1162]: "Much of the brief of appellant is devoted to the urging of the plea of limitations that defendants interposed in their answer, and which counsel say is sustainable under the provisions of section 1911 of Baldwin's 1936 edition of Carroll's Kentucky Statutes. But the six months' limitation therein prescribed is exclusively applicable to an attack upon a preferential conveyance, as set forth in the immediately prior section 1910; this action not having been brought within six months after the recording of the attacked deed from the LaFatas to their nephew, the appellant.
Consequently, it held that if an action to set aside the deed as fraudulent is commenced more than five years after the cause of action accrues — that is after the deed is recorded — then such an action will fail absent "facts showing that the fraud was not discovered within five years, and, by reasonable diligence, could not have been discovered within that period." Id. at 505, 38 S.W.2d 254. Stated differently, the court said that any delay in filing such action within the limitation period must be shown to be excusable or the action will fail. Cf. Leitchfield Milling Company v. Rogers, 239 Ky. 481, 39 S.W.2d 961 (1931); Gillardi v. Henry, 272 Ky. 188, 113 S.W.2d 1158 (1938). Similarly, in Hollifield v. Blackburn, 294 Ky. 74, 170 S.W.2d 910 (1943), the court, in construing the language of both KRS 413.120 and KRS 413.130 (K.S. §§ 2515, 2519), held that the limitation period begins to run once the cause of action accrues and that absent evidence that the fraud could not have been discovered within the five-year period by the exercise of ordinary diligence, the cause of action accrues at the time the deed is recorded.
The appellant in arguing that this action is barred by the statute of limitations embodied in KRS 413.120 and 413.130 cites the court to two lines of cases: the first holding that an action for fraud must be brought within five years of the date of its perpetration or within five years of its discovery if in the exercise of ordinary care the plaintiff could not have discovered the fraud earlier and in no event beyond ten years from the commission of the fraud; the second holding that, when an action is brought beyond the initial five year period, the burden is on the plaintiff to allege and prove that the fraud was not discovered nor could have been discovered by the exercise of ordinary care within that period. See, e. g., Gillardi v. Henry, 272 Ky. 188, 113 S.W.2d 1158 (1938); Justice v. Graham, Ky., 246 S.W.2d 135 (1952). The appellee argues that the defense of statute of limitations is unavailable to the appellant contending that there has been no affirmative pleading.
We find ourselves in full agreement with appellee's contention on this point, for the reason that KRS 378.070(1) relates exclusively to a transfer made by one who prefers a prior creditor over and above other creditors, and an attack upon such a preferential sale as provided in the foregoing section cannot be sustained unless it be initiated within six months from the date one has actual or constructive knowledge of it. The case at bar is not one to have the alleged sale of the sedan declared to be a preferential transfer; it is cast under KRS 378.010 whereby appellee seeks to set aside, as he contends, a fraudulent transfer made to delay, hinder and defraud him in the collection of his claim for damages. The latter action is bottomed upon fraud and is not barred by limitations until after the expiration of five years from the time it accrued, as provided by 413.130(3). See also Gillardi v. Henry, 272 Ky. 188, 113 S.W.2d 1158, and Morgan v. Hibbard, Spencer, Bartlett Co., 299 Ky. 57, 184 S.W.2d 218. It is next argued that Martha Combs acquired the automobile in good faith for a valuable consideration.
1. In the recent case of Gillardi v. Henry, 272 Ky. 188, 113 S.W.2d 1158, there was presented for our consideration .9, like issue to that of the first one in this case. It, like its instant companion (this case) involved only a question of fact.