275 Ky. 460 | Ky. Ct. App. | 1938
Opinion op the Court by
Affirming.
Appellee, A. M. Anderson, as Receiver for the Citizen’s National Bank of Richmond, Kentucky, brought this suit in the Madison circuit court in May, 1937, to recover of appellant on a note for $2,000 executed by J. D. G-oodloe, now deceased, as principal, with appellant as surety. The note was subject to a credit of. $742.79 paid out of the proceeds of the personal property of J. D. Gfoodloe, deceased, upon the settlement of his personal estate.
He further stated that shortly after he signed the $2,000 note as surety, in violation of the agreements and understanding he had with the officials and agents of appellee as stated above, appellee by its officials and agents, against the will and without the consent and knowledge of appellant and for the purpose of cheating and defrauding him, did wrongfully, fraudulently and secretly from time to time loan J. D. Goodloe various sums of money aggregating the sum of $9,047.48 and to secure the payment of which it procured J. D. Goodloe to execute to it a second mortgage upon his farm in Madison county, which farm at that time had a Federal Land Bank mortgage against it in the sum stated above; that appellee, contrary to its agreement and understanding with him, failed to protect him in any way or manner by failing to incorporate in said mortgage the amount owing this defendant by J. D. Goodloe or the $2,000 note which he signed as surety.
Appellant further stated in his answer that thereafter and on the 9th day of June, 1932, J. D. Goodloe died intestate and that at the time of his death his estate was solvent and sufficient to pay any and all of his liabilities; that shortly before the death of J. D. Goodloe and soon as appellant learned or was informed of the execution of the second mortgage to appellee, he immediately notified appellee that he would not further renew the $2,000 note or be responsible for same because of the violation of the agreement and understanding above set forth, and further notified appellee to immediately proceed against the property and estate of J. D. Goodloe, who was then living, for the collection of any demands which it had against J. D. Goodloe and especially upon the $2,000 note; that appellee failed and refused to take any action in the collection of its demands during the lifetime of J. D. Goodloe, and had it not been for its
In paragraph 3 of the answer appellant pleaded the statute of limitations against appellee’s action on the note. But since other facts pleaded by appellant and undisputably disclosed by the record in action No. 2758, the suit to settle the estate of J. D. Goodloe, clearly disclose that appellee’s right of action was not barred by the statute of limitations, we need not further pursue that question, except we may say, however, that the renewal note sued on was executed November 30, 1931, and this suit was filed on the 13th day of May, 1937, which brings it within the seven year period of limitations prescribed by Section 2551 of Kentucky Statutes.
In regard to appellant’s allegation in his answer, that he notified appellee that he would not further renew the note sued on, or be responsible for the same because
In appellant’s answer and counterclaim he consistently referred to action No. 2758, the action for the settlement of the estate of J. D. Goocfioe, deceased, and made that record a part of his answer and which is also made a part of this, record on appeal. The settlement suit record contradicts many of the material allegations of appellant’s answer, some of which we may mention but it is not necessary to discuss all of them. One vital variance is that it is disclosed in the settlement record No. 2758, that the second mortgage lien taken by appellee to secure it for the alleged additional loans made to J. D. Goodloe was executed in 1928, whereas the $2,'000 renewal note in question was executed November 30, 1931.
It is thus seen that the second mortgage could not have prejudiced or affected appellant’s rights. Furthermore, it is disclosed in the settlement suit referred to as action No. 2758, that the land of J. D. Goodloe, deceased, was duly advertised and sold by the court’s commissioner and produced a sum sufficient only to satisfy the first mortgage lien of the Federal Land Bank. Obviously, if there had been no second mortgage on the land, appellant would have been in no better position than he was with a second mortgage.
In appellant’s answer he attacks the sale of the land as being fraudulent, but his allegations of fraud and unfair sale are contradicted by the record in the settlement suit, in that, it is shown by that record that appellant was a party defendant in that action and made no objections to the confirmation of the sale which he now attacks as fraudulent. As a common creditor he received the sum of $908.92 on the $2,500 note he paid to the Madison Southern National Bank for J. D. Goodloe, and also received his pro rata share on the distribution of $5,535.37, realized from the sale of J. D. Goodloe’s personal property, and made no complaint or objections concerning the appellee receiving its pro rata of $742.79 on the $2,000 note in controversy, and allowed the settlement and distribution of the proceeds of personal es
Appellant makes his answer a counter-claim in which he seeks to recover damages against appellee for the alleged breach of its agreement with him and its failure to proceed against the estate of J. D. Goodloe in his lifetime, pursuant to the alleged notice we have discussed above. In brief for appellant it is virtually conceded that the alleged oral agreement he had with appellee is not binding, in that, it would have the effect of changing a written contract (note) and that he is liable on the note; but he insists that he is entitled to recover of appellee damages for the alleged breach. To sustain his position he cites and relies upon the cases of Rohrman v. Bonser, 157 Ky. 397, 163 S. W. 193; Gaarr v. Louisville Banking Company, 11 Bush 180, 21 Am. Rep. 209; Hudspeth’s Adm’r v. Tyler, 108 Ky. 520, 56 S. W. 973, 22 Ky. Law Rep. 221. He also insists in his counterclaim that he is entitled to recover of appellee the sum of $742.79 pro rated to appellee out of the proceeds of the personal property, claiming that because of the alleged agreement he had with appellee he was entitled to priority against the personal estate of J. D. Goodloe. deceased, as well as the land. Without further discussing the counter-claim, it is sufficient to say that the same reasons and principles stated above relating to appellant’s answer and defense to the note are likewise applicable to his counter-claim. The answer and counterclaim are based upon practically the same facts and circumstances and are so intermingled as to render them impossible of separation. The facts disclosed in the record referred to as the settlement suit or action No. 2758 have the same application to the counter-claim as
There is no escape from the conclusion that, in view of the facts disclosed by appellant’s exhibit, settlement action No. 2758, and appellant having been a party to that action and his acquiescence and express approval of the manner of sale and the distribution of the proceeds thereof, he is now precluded from any recovery on his alleged counter-claim. If the matters complained of in his counter-claim, as well as his answer, were true, appellant should have raised those objections and questions before the confirmation of the sale instead of approving and acquiescing therein in the manner stated above. These matters of estoppel plainly appear on the face of the pleadings and in these circumstances a demurrer was the proper proceeding, and estoppel need not be especially pleaded. Lockhart v. Kentland Coal & Coke Company, supra.
For reasons stated it follows that the chancellor did not err in sustaining the demurrer.
Judgment affirmed.