166 Ky. 194 | Ky. Ct. App. | 1915
Opinion op the Court by
Affirming.
This case may bé briefly disposed of. Previous to September, 1908, Gray was indebted to Gilliam in the sum of two thousand dollars, secured by a mortgage on what was known as the ‘ ‘ Tunnel property. ’ ’ Desiring to
In 1912 the assignee of Gilliam brought suit to enforce this mortgage lien, and Gray sought to-defeat a recovery upon the ground that Gilliam had never released the mortgage on the Tunnel property or accepted the new mortgage, and therefore there was no consideration for its execution.
Some claim is made that in consequence of the failure of Gilliam to release the mortgage on the Tunnel property, Gray was damaged in connection with a trade he had with the Charlton-Jellico Coal Co., but there is no evidence to support this contention.
The new mortgage itself recited that as soon as it was accepted and placed on record, the mortgage on the Tunnel property would stand released. By placing this mortgage on record Gilliam accepted it in lieu of the mortgage on the Tunnel property, and his act in thus accepting it, of itself released the lien secured by the other mortgage.
It is further said that the new mortgage provided that it should not take effect until.Gray paid the interest on the first mortgage debt' or made satisfactory arrangements concerning the same, and as Gráy did not pay this interest, the new mortgage did not take effect. But when Gilliam accepted this new mortgage and put it on record, he signified his willingness that it should take effect without the payment of the interest, and this act on his part was an acceptance of the new mortgage.
Again, in 1910, Gilliam, in his bankruptcy proceedings, fully recognized the existence and validity of this new mortgage.
It is also relied on as error that personal judgment was given against Mrs. Gray, but there is no merit in this contention. Mrs. Gray assumed payment of this mortgage debt and was liable as principal for its payment.
The judgment is affirmed.