109 Ky. 21 | Ky. Ct. App. | 1900
REVERSING.
Appellant filed this suit to foreclose a mortgage given to it by Leslie Combs. Appellee, the Security Trust & Safety Vault Company of Lexington, Ky., to whom Leslie Combs had assigned all his property in trust for the equal benefit of his creditors, was also made a defendant to the action, and insists that the mortgage is void for uncertainty. The objection to the mortgage is that it fails to state the sum of money it was given to secure. In Pearce v. Hall, 12 Bush, 209, this court, in a similar case, said: “It is the policy of our law to require parties holding liens upon property not taken into possession to give notice to the public of the existence of their rights; hence, as to purchasers for a valuable consideration and as to creditors, a mortgage does not become operative until lodged for record in the proper office. The spirit of our statutes upon this subject requires not only that such conveyances shall be lodged for record, but that they shall show for themselves, and without the aid of extrinsic evidence to be obtained by inquiry, the nature of the lien, and with a reasonable degree of certainty the amount of the debts they are intended to secure. If the amount be ascertained, as in this case, it ought to be stated. If it be not ascertained, then such descriptive facts as are within the knowledge of the parties, and as tend to put one interested in the inquiry upon the track leading to a discovery, ought to be set out. Unless this much is done, the public record does not show the state of the title, and room is left for the substitution of fictitious and fraudulent claims, and the prime object of the recording 'system is subject to be defeated.” The rule thus announced has been followed in a number of subsequent cases1, and may
These three papers, taken together, very clearly show that the debt secured by the mortgage was the sum of $27,000, and they contain sufficient matter on their face to identify them as parts of one contract which may properly be read together to ascertain the intention of the parties. Appellant therefore acquired under them a lien on the tobacco which was good as between it and Leslie Combs. It remains to inquire whether this lien may be enforced against the trust company, as his assignee for the benefit of his creditors. In Zaring v. Cox’s Assignee, 78 Ky., 528, where a similar question was made, this court said: “The conveyance by Goar to Cox, although unrecorded, and without notice, gave Goar an equity superior to that of antecedent creditors of Cox, who had notice of the equity be