94 Ky. 455 | Ky. Ct. App. | 1893
delivered the opinion op the court.
The Cornell Wind. Engine and Pnmp Company made a general assignment for the benefit of creditors. The lower court adjusted all the questions of attachments, priority of liens, &c., and all the parties are satisfied with the court’s adjustment except its action in sustaining the appellee’s mortgage, dated the 18th of October, 1890, upon the company’s property, given by the company to secure a loan of four thousand three hundred dollars made by her to the company. The appellee loaned to the said company seven hundred and fifty dollars the 26th of August, 1890; seven hundred and fifty dollars October 4, 1890; seven hundred and fifty dollars October 10, 1890, and two thousand dollars October 18, 1890. .On
The appellee contends that she would not have-loaned said sum to the company except upon the faith of a verbal agreement made with it at the time of the first loan, and repeated at every subsequent loan, that a mortgage should be' executed to secure the loans as soon as the president of the company, who was then absent, should return home to sign the mortgage- bonds, which were to be delivered to the appellee as security for the loans; that on the 18th day of October, the president, having returned, signed and delivered the bonds to secure the payment of the loan of two thousand dollars that day made, and the loan of two thousand three-hundred dollars theretofore made. The appellee’s contention is, that as the money was loaned upon the faith of the contract to thereafter execute a mortgage to secure its payment, and as it was executed pursuant to the contract and before the rights of third persons had intervened, the mortgage should be considered as relating back to the contract and as. a part and parcel of it, and therefore binding.
The language of the statute means that the execution of the mortgage and creation of. the debt or liability must be simultaneous acts. The promise to execute the mortgage in the future to secure a debt or liability that day made, is not a simultaneous act.
2. The weight of the evidence is that the mortgage was executed on the 18th day of October instead of the 12th of November.
The case of McCutcheon & Co. v. Caldwell & Son, 90 Ky., 249, takes up the cases of Brooks, Waterfield & Co. v. Staton’s adm’r, 79 Ky., 174, and others referred to by appellee, and disposes of them consistently with this opinion.
The judgment is reversed as to the.matter of two thousand three hundred dollars, and affirmed in all other particulars.