fied. 4. ELECTIONS 230 CORRUPT PRACTICE [ ject is somewhat extended; the effect of it ACT-EFFECT OF VIOLATION. upon one side being that Alliston made a Payments of cash by the chairman of a campaign committee to voters for their vote bargain with Rouse to appoint him deputy and support of a candidate for sheriff, if sheriff for his support in the general election; made with the candidate's knowledge, nullified the effect of it upon the other side being that his election under Corrupt Practice Act, § 11, Alliston made no such direct promise, but, at notwithstanding that the amounts paid were insignificant, section 3 of the act prohibiting the the suggestion of some of the other candiuse of any money or others things of value, ei- dates, Alliston stated, or let it be known, that ther directly or indirectly by a candidate, ex- Rouse Rouse would be his Democratic deputy. cept for the legitimate purposes therein speci- There is no doubt that Rouse expected the deputyship which he obtained, since he worked actively in the support of Alliston, and no doubt contributed in a material degree to his election. Rouse was a prominent man in the county, had a large acquaintance, and was an active member in a very influential religious denomination whose members were friendly to him. But if Rouse supported Alliston under the promise of a deputyship, that fact did not invalidate the election. Van Meter v. Burns, 176 Ky. 158, 195 S. W. 470. [2] And, the candidacy of Rouse in the Democratic primary, however binding it may 5. ELECTIONS 305(7)-CONTEST-REVIEW OF FINDING OF FACT. In a suit to contest an election of a sheriff on the ground of purchase of votes, where the evidence was conflicting as to whether the candidate. was present at the meeting at which it was determined to purchase the votes, the chancellor's findings will not be disturbed. 6. ELECTIONS 307-CONTEST-COSTS. An allowance of $75 for five days' service by a commissioner in counting ballots in an election contest for the office of sheriff was erroneous; Ky. St. § 1740, confining the commissioner's compensation to $3 for each day, if he is actively engaged. Appeal from Circuit Court, McCracken have been upon him in morals and in good County. Petition by Charles E. Graham against George L. Alliston to contest an election for sheriff. Decree for respondent, and petitioner appeals. Affirmed. F. N. Burns and John K. Hendrick, both of Paducah, for appellant. Mocquot & Berry, of Paducah, for appellee. MILLER, J. The appellant, Charles E. Graham, George Rouse, and two others were candidates for the nomination for sheriff of McCracken county in the Democratic primary held in August, 1917. The votes were well distributed between the four candidates, with Graham, the successful candidate, leading Rouse, the candidate with the next highest vote, by 235 votes. At the general election held in November of that year the appellee, George L. Alliston, was the Republican candidate for sheriff; and on the face of the returns he was elected by a majority of 194 votes over Graham. On November 19, 1917, Graham filed his petition in the McCracken circuit court contesting Alliston's election upon several grounds, the principal grounds relied upon being: (1) an alleged immoral and corrupt bargain between Rouse and Alliston under which Rouse supported Alliston in consideration of a deputyship which has subsequently been given him by Alliston; and (2) violations of the Corrupt Practice Act of 1916 by Alliston, his friends, and the chairman of the Republican campaign committee. [1] Graham testified that Alliston said George Rouse had supported him in his race, and that he had agreed to make Rouse one of his deputies. Graham further testified that shortly after the primary Rouse told him he would support Graham and the entire Democratic ticket. The testimony upon this sub faith, did not preclude him from supporting The Republican campaign committee consisted of the Republican candidates for the county offices, with L. B. Alexander, the Republican candidate for county attorney, as its chairman. The issue was made as to whether there was a Republican campaign committee or chairman whose illegal actions could be charged against Alliston. We think it is clear, however, that there was such a committee, and that Alexander was its recognized chairman throughout the campaign. Alexander so testified unequivocally, and in this he an agreement, it confines the commissioner's is supported by most of his fellow candidates. [ judge of $75 for five days' services in count- Republican ticket from their pulpits, which they did. Furthermore, $10 was paid to Centers and Black, colored voters, for their support. These payments were in direct violation of the Corrupt Practice Act, and if done with the knowledge of Alliston, they would constitute a ground of contest and nullify his election under section 11 of that act. Acts 1916, p. 60. The comparative insignificance of the amounts would not affect the case, since section 3 of the act prohibits the use of any money, or other thing of value, either directly or indirectly, by a candidate, except for the legitimate purposes therein specified. But Alliston testified that he did not know of these illegal transactions, and that when he learned them he refused to repay any portion of the money so used to the chairman of the Republican campaign committee. (180 Ky. 700) FARMERS' NAT. BANK v. SLATON. (Court of Appeals of Kentucky. May 24, 1918.) TACHMENT LIENS. Under Bankruptcy Act of 1898 (Act Cong. July 1, 1898, c. 541, 30 Stat. 544), as amended by Act Cong. June 25, 1910, c. 412, 36 Stat. 838, sections 67c and 67f (U. S. Comp. St. 1916, § 9651), as to preferences, the trustee in bankruptcy can recover only when the debtor is insolvent at the time the judgment in attachment is secured and paid, but he cannot resolvent within four months, unless there was cover if the debtor subsequently becomes infraud intended to or actually working a preference. 2. BANKRUPTCY 302(2)-ACTIONS BY TRUS TEE-RECOVERING PREFERENCES-DEFENSES. Where trustee in bankruptcy sued attachment creditor, whose claim was reduced to judgment and paid, the creditor's answer alleging that the debtor was not insolvent when the judgment was paid, denying the existence of a attachment and judgment was secured and the preference, and alleging that there was no attempt to obtain a preference, stated a good defense. Appeal from Circuit Court, Hopkins County. Action by Benjamine M. Slaton, as trustee in bankruptcy of the Hustler Publishing Company against the Farmers' National Bank. Judgment for plaintiff, and defendant appeals. Reversed. Alliston made three payments to the campaign fund, aggregating $55. Alexander, the chairman, paid out $663.02 as election expenses; and as Alliston was the only Republican candidate that was elected, it was agreed shortly after the election that the defeated Republican candidates should pay $100 of the unpaid balance, and that Alliston should pay the remainder, amounting to $303.12. It Laffoon & Waddill, of Madisonville, for seems that Alliston at first agreed to pay appellant. J. W. Powell, of Madisonville, for the, $303.12, but upon ascertaining that it embraced the $35 paid to corrupt the negro preachers, and the $10 paid to Black and Centers, he excepted those sums from the amount and offered to pay the balance, which was declined by the chairman. [5] Several of the other candidates testified that Alliston attended the committee meeting at which it was determined to pay this money to the colored preachers, but Alliston contradicted them flatly in this respect. So upon this important issue we have proof upon either side. The chancellor presumably knew the witnesses, and was in a position which peculiarly qualified him to pass upon this issue of fact; and upon this issue he found in favor of Alliston, and dismissed the petition. Under the circumstances we do not feel justified in reversing his judgment under the facts. [6] Objection is taken to the allowance made to the commissioner by the special appellee. A SAMPSON, J. The Farmers' Bank instituted an action and sued out an attachment against the Hustler Publishing Company, incorporated, to recover $778 and interest. fund belonging to the Hustler Company was garnished in hands of the master commissioner and held under the attachment. At a subsequent term of the court the bank recovered judgment against the publishing company for the amount of its debt, interest, and cost, and a sufficiency of the attached fund was applied to the satisfaction of the judgment. That action was instituted by the bank against the publishing company on March 2, 1916. Judgment was recovered May 13th, and it was satisfied May 27th of the same year, and the action was stricken from the docket at said time. The publishing company at that time owed certain other debts, and owned a limited amount of property, besides some bills For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes . the bank over other creditors. These allegations, however, are traversed by the bank. The answer does admit that it brought the attachment suit, obtained judgment, thereon, and recovered the amount of money for which this action was instituted, Lut it put in issue all other allegations of the petition, including the charge of the insolvency of the publishing company, and all effort, attempt, o" permission to obtain a preference. To this answer filed by the bank, the trustee interposed a general demurrer, which was sustained, and the bank declining to plead further, the court granted the prayer of the petition, and adjudged the trustee entitled to recover of the bank the sum sought. receivable, including $111, balance in the intention to obtain and allow a preference to hands of the master commissioner. On June 22d following a petition in bankruptcy was filed in the federal court against the Hustler Publishing Company, and on the 11th of July the publishing company was duly adjudged a bankrupt, and shortly thereafter at a meeting of the creditors of the publishing company, appellee Slaton was elected trustee in bankruptcy and directed to institute an action in the Hopkins circuit court to recover of the Farmers' National Bank the sum it had obtained under its attachment lien in the suit above mentioned, on the ground that the attachment was sued out, judgment recovered, and money paid in that action within four months next before the filing of the petition in bankruptcy, all with intention of securing a preference or advantage over other creditors. Accordingly, on September 15, 1916, after demand, Slaton, as trustee, commenced this action against the bank to recover $878 and interest. The action by the trustee is based upon section 67c and section 67f of the Bankruptcy Act of 1898, as amended by the act of 1910. Section 67c reads as follows: "A lien created by or obtained in or pursuant to any suit or proceeding at law or in equity, including an attachment upon mesne process or a judgment by confession, which was begun against a person within four months before the filing of a petition in bankruptcy by or against such person shall be dissolved by the adjudication of such person to be a bankrupt, if (1) it appears that said lien was obtained and permitted while the defendant was insolvent and that its existence and enforcement will work a preference, or (2) the party or parties to be benefited thereby had reasonable cause to believe the defendant was insolvent and in contemplation of bankruptcy, or (3) that such lien was sought and permitted in fraud of the provisions of this act." The mere fact that a judgment was obtained within four months of the filing of the petition in bankruptcy, enforcing an attachment lien of itself, does not render a creditor liable to respond to the trustee in an action of this character, unless the debtor was insolvent at the time, or there was fraud which was intended to and which did in fact work a preference. In order that a lien obtained by an attachment or other legal proceeding shall be dissolved by adjudication in bankruptcy against the debtor, it is essential that the debtor should have been insolvent at the time when such lien was obtained. when such lien was obtained. 7 Corpus Juris, 197. It may further be said that by the provisions of the Bankruptcy Act above quoted, the trustee does not appear to be entitled to have a recovery where the attachment lien has been reduced to judgment and the sum has been fully satisfied before the filing of the petition in bankruptcy, except where the debtor was actually insolvent at the time the attachment was levied or enforced within The language of section 67f so far as appli- four months before the commencement of the cable as follows: "That all levies, judgments, attachments, or other liens, obtained through legal proceedings against a person who is insolvent, at any time within four months prior to the filing of a petition in bankruptcy against him, shall be deemed null and void in case he is adjudged a bankrupt, and the property affected by the levy, judgment, attachment, or other lien shall be deemed wholly discharged and released from the same, and shall pass to the trustee as a part of the estate of the bankrupt." bankruptcy proceeding. The text on page 200, 7 Corpus Juris, says: "Where a lien obtained through legal proceedings has merged into a complete title, such title is not defeated by a subsequent adjudication of bankruptcy against the defendant in such proceedings; and so, where property has been sold under execution the title of the purchaser is not affected by an adjudication of bankruptcy against the judgment debtor, although the petition on which such adjudication was based was filed within four months after the rendition of the judgment, and although the judgment creditor was the purchaser at the sale, unless a remedy can be found under some provision of the Bankruptcy Act other than those now under consideration." [1] From these provisions of the act, it is manifest that a recovery can be had only when the debtor is insolvent at the time the recovery is had under the lien, attachment, or judgment and money paid. If the debtor is In Brandenburg on Bankruptcy the prinsolvent at the time the judgment lien of at- ciple is laid down that when a writ of attachment is obtained, but afterwards and tachment has been fully executed and prowithin four months becomes insolvent and is ceeds paid over to the creditors before the adjudged a bankrupt, the lien is not dissolved commencemnt of the bankruptcy proceedings, or released by a judgment in bankruptcy, pro- the provisions of section 67f, Bankruptcy vided the lien was not sought or permitted in Law, do not apply, and in the same work fraud of the Bankruptcy Act. In this action and others upon the same subject, it is said it is charged in the petition that the attach- that a trustee in order to recover a preferment sued out by the bank was instituted and ence must allege and prove that the debtor prosecuted by the bank and acquiesced in by was then insolvent, and that the enforcement adjudged proceedings would effect a preference, and that the creditor then had reasonable cause to believe so. [2] Since the answer of the bank in this case put in issue the insolvency of the debtor, and also denied any attempt, purpose, or effort on the part of the bank, or permission or acquiescence on the part of the publishing company to have or allow a preference to the bank over the other creditors, as well as a denial of the existence of a preference, we are constrained to the opinion that the answer stated a sufficient defense, and the general demurrer should have been overruled. For this reason the judgment is reversed for proceedings consistent with this opinion. (180 Ky. 718) Appeal from Circuit Court, Carroll County. Action by the Louisville Tobacco Warehouse Company against E. T. Calvert and another. From an adverse judgment, plaintiff appeals. Affirmed. Winslow & Howe, of Carrollton, for appellant. J. A. Donaldson & Sons, of Carrollton, for appellees. Warehouse Company, beginning January 29, CLARKE, J. Appellant, Louisville Tobacco 1912, advanced to E. T. Calvert and R. L. Vallandingham, partners doing business under the firm name of E. T. Calvert & Co., various sums of money with which to purchase tobacco, to be prized, shipped to, and sold at, plaintiff's warehouse in Louisville, upon which advancements the firm agreed to pay interest. The tobacco was not all sold until LOUISVILLE TOBACCO WAREHOUSE CO. after the death of Vallandingham in 1914, v. CALVERT et al.* (Court of Appeals of Kentucky. May 28, 1918.) and when it was sold and the proceeds credit ed upon the account of Calvert & Co. for advancements, it left them indebted to the 1. APPEAL AND ERROR 358-CROSS-APPEAL | warehouse company in the sum of $2,558.88. -NECESSITY OF MOTION. Under Civ. Code Prac. § 755, providing that appellee may obtain a cross-appeal, at any time before trial, by an entry on the records of the Court of Appeals, while cross-appeal is granted as a matter of right, on motion, it is necessary that motion be made, and an order, granting it be entered on the records of such court before final submission; and an attempted cross-appeal in the brief only is ineffectual. - 2. HOMESTEAD 181(3) ABANDONMENT EVIDENCE. There is no absolute rule as to the amount or character of evidence sufficient to establish abandonment and waiver of homestead right, which depends upon the intention and purpose of claimant when leaving and during his absence, but each case must be determined on the facts established. 3. HOMESTEAD 181(3) ABANDONMENT EVIDENCE-VOTING ELSEWHERE. That claimant of a homestead voted in another precinct is not conclusive evidence of abandonment of homestead, but merely a circumstance to be considered with other proof. 4. HOMESTEAD 181(3) ABANDONMENT EVIDENCE-DURATION OF ABSENCE. In April, 1912, Calvert purchased a lot in Carrollton, Ky., for $216, had the deed therefor made to himself and wife, and erected a dwelling house on the lot, which he and his wife were occupying as a homestead at the time this action was brought, in April, 1916, wherein plaintiff, after setting up its account against E. T. Calvert & Co., alleged that at the time the lot was conveyed to Calvert and his wife Calvert & Co. was indebted to it in the sum of about $5,000; that the conveyance of any part of the title to the property to the wife was a fraud upon the rights of plaintiff, done by E. T. Calvert for the purpose of cheating, hindering, and delaying plaintiff in the collection of its claim. Plaintiff procured a general order of attachment, had it levied upon the house and lot, and prayed judgment for the balance of $2,558,88, with interest, due it by the firm of E. T. Calvert & Co.; that the conveyance to Mrs. Calvert be set aside and the house and lot be subjected to the payment of plaintiff's demand. fendants admitted the indebtedness of E. T. Calvert & Co. as alleged by plaintiff, with the exception of one item of $730.40, which they denied was advanced to the firm by plaintiff; denied the alleged fraud; averred that the house and lot in Carrollton was purchased with the proceeds of a house and lot in Owen county, which they used, occupied, and claimed as a homestead from 1876 until shortly before the purchase of the lot in Carrollton by the defendant; that the house was erected upon the lot in Carrollton, and payment therefor made out of the balance of the proceeds received from the sale of their Owen county Facts and circumstances held to warrant homestead, supplemented by $600 furnished conclusion that proceeds of an old homestead in- by Mrs. Calvert, which was her individual vested in a new home was exempt as against creditors extending credit between the leaving of and separate property; and that the house the old home and the purchase of the new one. and lot in Carrollton was exempt from the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *Rehearing denied. Duration of absence from homestead is not conclusive on question of abandonment, but only a circumstance to be considered. 5. HOMESTEAD 80-EXEMPTION-PURCHASE WITH PROCEEDS OF PRIOR HOMESTEAD. The owner of a homestead selling it, and with the proceeds buying another the right to homestead in the second is good against intervening creditors, unless the first was abandoned before the purchase of the second. 6. HOMESTEAD 181(2) ABANDONMENT EVIDENCE. That a prior homestead was sold and the proceeds invested in a new home, in which the owner was actually living when it was attempt ed to subject it to his debt, is a circumstance to be considered in determining abandonment of the first before the purchase of the second. 7. HOMESTEAD 214-EXEMPTION. De payment of plaintiff's demand. Defendant E. T. Calvert set up a counterclaim for $3,000 damages for alleged negligence upon the part of plaintiff in storing and caring for the tobacco shipped to it by the firm, and for plaintiff's failure to sell the tobacco as it was received. Upon the trial, a judgment was entered in favor of the plaintiff against E. T. Calvert for the amount claimed in the petition; also adjudging that defendants were entitled to a homestead of $1,000 in the house and lot sought to be subjected; that the balance of the funds used in purchasing the lot and erecting the house in excess of $1,000 was the individual property of Mrs. Calvert; that the conveyance of the property to the Calverts jointly was not fraudulent; that the property was not subject to plaintiff's claim; and that the defendant's counterclaim be dismissed. Plaintiffs are, appealing from so much of the judgment as exempted defendants' house and lot from the payment of its claim; while counsel for defendants, in their brief, but not otherwise, attempt a cross-appeal from so much of the judgment as dismissed the counterclaim. . Section 755, Civil Code of Practice, provides, in part, that "the appellee may obtain a cross-appeal, at any time before trial, by an entry on the records of the Court of Appeals." A cross-appeal is granted to an appellee under this provision of the Code as a matter of right, upon motion; but, to procure it, it is necessary that a motion be made and an order granting it be entered upon the records of this court before final submission. This appellee in this case failed to do, and we cannot, therefore, review the court's judgment dismissing appellee's counterclaim, as we are asked to do by counsel in brief. $600 that belonged to and was furnished by his wife, they erected on the lot a dwelling house, which they have since occupied as a homestead. Appellees claim and testify that during the period between the time they left their Owen county home and their purchase of a home in Carrollton they were claiming the former as a homestead with a fixed intention of returning thereto; that in 1906, while the husband was employed away from Carrollton as a clerk on a Kentucky river steamboat, they returned and occupied the Owen county home as a homestead; that, again finding employment in Carrollton, he and his wife rented and occupied rooms in Carrollton with the intention of remaining in Carrollton a short time, and then returning to their old home; and that, not until they sold their home in Owen county and purchased the lot in Carrollton, did they give up the intention of returning to their home in Monterey and establish a new home in Carrollton, or have any fixed or permanent home in Carrollton, or elsewhere, except at Monterey. As contradictory of this evidence of a fixed intention to return, counsel for appellant rely upon admissions of defendant E. T. Calvert that, during the time he had been in Carrollton, he had voted there a few times, and did not know that he had voted in Owen county within the five years next preceding the sale of his property there; and that, during the time he had been in Carrollton, their children, while of school age, had attended the Carrollton public schools without the payment of tuition. For appellant, it is insisted that the testimony fails to establish an actual, fixed, and present intention upon the part of defendants, during the 12 'years they were away from the Owen county property, to return to and occupy it as a homestead, but, at most, it does no more than to show that they had an indefinite, secret idea that some time they might want to return to it; and that the rule adopted in this state is as stated in Mattingly v. Berry, 94 Ky. 544, 23 S. W. 215: "It is well settled by this court that in order for a person to claim his homestead as against the rights of creditors, after abandoning the same, the abandonment must be temporary, with a fixed purpose at the time of abandonment to return to said property and occupy it as a homestead." 2. The proof is uncontradicted that in 1876 the defendants E. T. Calvert and his wife, Susie Calvert, were married and went to housekeeping in a house, which he erected on his mother's land at Monterey in Owen county; that his mother died in 1888, and, in the division of her estate, he was allotted 100 acres of land, upon a part of which this house was situated; that the defendants, with their family, resided upon this land and occupied the house thereon as a homestead continuously from 1876 until 1900, when the defendant E. T. Calvert accepted employment in Carrollton, where he has since resided, except for about four months in 1906; that, with this exception, from the time he left the former place and went to Carrollton until he purchased the lot and erected the house there[2] We do not question either the accuon he rented out his home in Owen county, racy of this statement of the rule or that and lived in rented property in Carrollton; the judgment in each of those cases was, that when he sold his Owen county home upon the facts, correct. But, as has been there was left, after the payment of his debts, often said, it is impossible to lay down an about $1,000; that with $216 of this $1,000 absolute rule as to the amount or character he purchased the lot in Carrollton; and that, of evidence that will be sufficient to establish with the remainder of this $1,000 and some the fact of abandonment and a waiver of See, also, Carter, Fisher & Co. v. Goodman, 11 Bush, 228; Burch v. Atchison, 82 Ky. 585; Curran v. Culf, Adm'r, 15 S. W. 657, 13 Ky. Law Rep. 84; Nethercutt v. Herron, 8 S. W. 13, 10 Ky. Law Rep. 247. |