What deemed sufficient service of process upon.

Penalty on for

eign corporation

ply with provis

ions sections.

tion, may sue for, and prosecute to final judgment, all such matters in any of the courts of competent jurisdiction in any of the counties through which said road may be constructed, subject, however, to the same right of removal, by change of venue, to courts of other counties, as is or may be given to citizens of this State, which authority shall be put to record in the county court clerk's office of some one of the counties through which said road runs, a certified copy of which shall be competent evidence in any of the courts of this Commonwealth.

§ 2. Service of process upon such agent or agents shall be deemed a valid service upon such company.

§ 3. Any such corporation or company failing or refusing to comply with the foregoing provisions, or that shall, after for failure to com- the recording the authority as required in the first section of former hereof, cause to be removed any suit or matter of litigation with a citizen resident or corporation of this State, from the State court to the United States district or circuit court, shall, in the manner hereafter prescribed, be prohibited from doing business in this State; and all contracts thereafter made by such corporation, through its agents, shall be null and void as to such parties; and all parties and persons continuing to contract and do business in this State, either in their own name or that of others, in violation of this act, shall be deemed guilty of a misdemeanor, and for each day he or they shall so offend may, upon indictment, be fined not less than fifty dollars, and imprisoned not less than one week for each day they so offend, either or both, in the discretion of a petit jury.

General to insti

tute proper pro

ceedings for vio

lations of this

chapter.

§4. It shall be the duty of the Attorney General, upon Duty of Attorney information that any of the provisions of the first or third sections of this article have been violated by any foreign corporation, to institute in the Franklin circuit court, upon which for such purpose complete jurisdiction is hereby conferred, proper proceedings to obtain the judgment of the court suspending the powers of such corporation, or prohibition against it further to transact business in this Commonwealth.

Such corporations deemed common carriers

forbidden to dis

criminate in respect of freights. Individuals may supply want of

cars.

§ 5. All such corporations or companies engaged in the business aforesaid in this State shall be deemed common carriers, and shall not discriminate in carrying freight for or against any individual or company, but shall, so far as

its rolling stock and equipments will permit, transport all freight over said road that may be offered, upon payment, if required or tendered, of the rates of tariff allowed by law or the charter of such road; and if such road is not supplied with the necessary cars to do the business required, it shall be lawful for any individual or company to furnish such necessary cars for their own use; and it shall be the duty of the company or persons controlling and operating such road, to carry freight in such cars to any point on the line of said road that may be required, and return the cars to the parties furnishing them as speedily as can conveniently or reasonably be done. That any person or company being damaged by the failure or refusal of the company controlling said road to discharge the duties enjoined in this section, may, by action, recover the actual damage sustained, and fifty per cent. in addition.

§ 6. Any persons desiring to engage in the business of mining stone-coal, milling, or the manufacture of iron, adjacent to the line of such railroad, may, under the direction of a competent engineer, construct a switch, to be connected with said road, for the convenience of their said business, upon condition, however, that said parties shall execute a covenant to the Commonwealth of Kentucky, in the county court of said county, with good resident surety, to be approved by the court, to the effect that he or they will keep a constant attendant upon such switch, and will pay all damages to the parties entitled by reason of the improper construction of same or negligence in keeping it properly adjusted, so as not to obstruct passing trains; and all parties injured may recover reasonable and adequate damages.

When convey

CHAPTER 44.

FRAUDULENT CONVEYANCES AND DEVISES.(a)

ART. I. What conveyance, &c., void.

66

2. Fraudulent conveyances in contemplation of insolvency.

ARTICLE I.

What Conveyance, &c., Void.

§ 1. Every gift, conveyance, assignment, or transfer of,

ances, &c., void. or charge upon, any estate, real or personal, or right or

Purchaser with

out notice affected.

Voluntary

not

con

veyance void as

to existing creditors, &c., but

not as to debts

subsequently created.

thing in action, or any rent or profit thereof, made with the intent to delay, hinder, or defraud creditors, purchasers, or other persons, and every bond or other evidence of debt given, action commenced, or judgment suffered, with like intent, shall be void, as against such creditors, purchasers, and other persons. This section shall not affect the title of a purchaser for valuable consideration, unless it appear that he had notice of the fraudulent intent of his immediate grantor, or of the fraud rendering void the title of such grantor.

§ 2. 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, but shall not, on that account alone, be void as to creditors whose debts or demands are thereafter contracted, nor as to purchasers with notice of the voluntary alienation or charge; and though it be adjudged to be (a) The reader will find the principal rulings of the Court of Appeals on the subject of fraudulent conveyances—

1. As to effect between the parties themselves: 2 Bibb, 91; 4 Bibb, 65; Litt. Sel. Cases, 212; 2 Littell, 12; 3 Mon., 111; 17 B. M., 307; Smith's adm'r vs. Smith, MS. Opinion, 1859; 5 Bush, 47; 7 Bush, 193.

2. As to fraud in fact, or constructive: 3 Mon., 1; 4 Bibb, 446; 1 J. J. M., 226; 2 J. J. M., 213; Dana, 536; also 3 Mon., 157; 14 B. M., 646; 1 Metcalfe, 335; 1 Duvall, 282; 17 B. M., 307; 1 Bush, 423-86; 2 Bush, 70; 5 Bush, 206; 7 Bush, 59.

3. Voluntary conveyances: 3 J. J. M., 290; 5 J. J. M., 555; 4 Dana, 253; 1 Metcalfe, 380; 9 B. M., 514; 2 B. M., 345; 2 Metcalfe, 207; 3 Metcalfe, 450; 4 Metcalfe, 143; 3 Bush, 212, 322, 343, 402; 7 Bush, 217, 337, 585.

4. Deeds of trust and mortgages: 16 B. M., 237; 17 B. M., 782; 18 B. M., 814; 1 Metcalfe, 667; 16 B. M., 238; 4 Bush, 586.

5. The necessity that possession should accompany sale: 14 B. M., 532; 1 Litt., 254; 3 F J. M., 714; 1 Metcalfe, 401; 15 B. M., 558; 17 B. M., 541, 548-9; 1 Metcalfe, 350; 18 B. M., 610; 1 Duvall, 29, 270; 2 Duvall, 87; 1 Bush, 110; 2 Bush, 307; 5 Bush, 334.

6. Conveyances, &c., in contemplation of insolvency: I Metcalfe, 450; 2 Bush, 289; 4 Bush, 339; 5 Bush, 539; 8 Bush, 388.

void as to a prior creditor, it shall not therefor be deemed to be void as to such subsequent creditors or purchasers.

§ 3. Every voluntary alienation of or charge upon personal property, unless the actual possession, in good faith, accompanies the same, shall be void as to a purchaser without notice, or any creditor, prior to the lodging for record of such transfer or charge in the office of the county court for the county where the alienor or person creating the charge resides.

$4. Where any loan of personal property is pretended to have been made to any person with whom, or those claiming under him, possession shall have remained for five years, without demand made and pursued by due process of law on the part of the pretended lender, or where any reservation or limitation, by way of condition, reversion, remainder, or otherwise, is pretended to have been made in the alienation of such property so possessed, the absolute right shall be deemed to be with the possession, in favor of a purchaser without notice, or any creditor of the person so remaining in possession, unless the written evidence of the loan, reservation, or limitation be duly recorded in the county where the person resides before the possession is taken, or is contained in a properly recorded will.

§ 5. A devisee shall be liable for all debts and liabilities of the testator, in the same manner as the heir of the testator would have been liable, if the property devised had descended to the heir.

§ 6. The same actions which lie against the personal representatives, may be brought jointly against him and the heir or devisee of the decedent, or both, and shall not be delayed for the non-age of any of the parties.

7. The last two sections shall not apply to a devise made in good faith, for the payment of any of the testator's debts, if such devise have not the effect of giving precedence in favor of one creditor to the prejudice of another.

8. When the heir or devisee shall alien, before suit brought, the estate descended or devised, he shall be liable for the value thereof, with legal interest from the time of alienation, to the creditors of the decedent or testator; but the estate so aliened shall not be liable to the creditors, in the hands of a bona fide purchaser for valuable consideration.

9. To the extent of assets received, the representative, Heir, &c., liable heir, and devisee of an heir or devisee, shall be chargeable for the liabilities of their decedent or testator, respectively, to the creditors of the original decedent or testator.

to extent of assets received.

Acts 1855-'6, 107;

Acts 1862, 67.

contemplation of

rates as an as

debtors' property

for benefit of his

creditors.

§ 10. The heir or devisee may be sued in equity by a creditor, for any liability of the decedent or testator, and he may also, in such suit, if demanded, obtain, by the proper procedure, a lien on any specified property, descended or devised, not theretofore aliened, but not so as to prejudice thereby any other creditor.

ARTICLE II.

Fraudulent Conveyances in Contemplation of Insolvency. § 1. Every sale, mortgage, or assignment made by debtors, and every judgment suffered by any defendant, or any act or Sales, &c., in device done or resorted to by a debtor, in contemplation of insolvency, ope- insolvency, and with the design to prefer one or more credsignment of all itors to the exclusion in whole or in part of others, shall operate as an assignment and transfer of all the property and effects of such debtor, and shall enure to the benefit of all his creditors (except as hereinafter provided) in proportion to the amount of their respective demands, including those which are future and contingent; but nothing in this article shall vitiate or affect any mortgage made in good faith to secure any debt or liability created simultaneously with such mortgage, if the same be lodged for record within thirty days after its execution. (a)

But a mortgage

executed simulta

neously with liability valid.

Courts of equity

to have control

of the property.

Limitation oftime of suit.

Any creditors

may unite in petition; but no defendant necessary except the debtor and transferee.

§ 2. 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.

§ 3. Any number of persons interested may unite in the petition; but it shall not be necessary to make any persons defendants, except the debtor and the transferee; and the (a) Dower of surviving wife is not barred by a deed held fraudulent, although she may have united in the conveyance. (Dugan vs. Massey, 6 Bush, 81, and numerous cases cited.) Not so, however, if deed declared to be within the operation of the law against sales, &c., to prefer a creditor. (7 Bush, 158.) Conveyance of exempted homestead will not, though fraudulent, be effected by the law in relation to conveyances, &c., made to prefer creditors. (Lishy, White&Cochran vs. Perry & Clayton, 6 Bush, 515.)

2. If a deed be annulled as fraudulent, the grantee cannot claim the dower interest of the wife who joined in the deed; but it must, if assigned to any one, be allotted to her. (Lachet. vs. James, 8 Bush, 28.)