Hall v. Hall, 89 Ky. 514

89 Ky. 514 | Ky. Ct. App. | 1890

JUDGE BENNETT

delivered the oeirtoií oe the court.

The controversy here is as to the appellant’s, Maria Hall’s, right to have settled npon her one thousand dollars out of the proceeds of sale of a tract of land, the title to which was in Thomas Hall, husband of the appellant, the appellee, Robert Hall, claiming said sum as mortgagee of said land. The facts are briefly these: The appellant, in 1876, sold a tract of land lying in Bullitt county that belonged to her, for one thousand dollars, and delivered this sum to her husband, Thomas Hall, under promise that he would invest the said sum in Texas land for • her use and benefit; that he did not so invest the money; but about two years afterwards he purchased a piece of land in Jefferson county, Kentucky, and took the title to himself; that several years thereafter he sold this land, the appellant joining in the conveyance, and purchased the land in controversy, lying in' Bullitt county, Kentucky, and took the title to himself. He was indebted to the appellee by judgments, and the executions were levied on the land, and a mortgage was given upon the land to secure these debts, and ■the executions were returned in consequence thereof. •Said debts were created before the purchase of either tract of land by Thomas Hall. It is a part of the proceeds of this land that the appellant contends that her right to a settlement out of is superior to Robert Hall’s mortgage right.

Whether or not the appellant’s thousand dollars went into either tract of land is extremely doubtful. But conceding that it did, then her case is, in every substantial particular, like those of Meade, &c., v. Stairs, &c., 88 Ky., 66, and Darnaby v. Darnaby, &c., 14 Bush, 485, except in the fact that in this case the debts were created before Thomas Hall acquired the title to either tract of landconsequently, as it is contended, Robert Hall is not-a creditor for value upon the faith of Thomas Hall’s title to said property; therefore, his right is not superior to the equity of the appellant.

The appellant surrendered the title and possession of this money to her husband, it is true, as she says, in trust for a certain purpose. The trust was not, however, carried out, but the legal title to this money passed to the husband, and he did, in fact, convert it to his own use, and the appellant was only left with an equitable right to have this money, or its equivalent, settled upon her as long as it remained in the hands of her husband, either in kind or in land, but subject to the rights of creditors without notice of this latent trust. Such trusts are latent, and can not prevail against the rights of any creditor that has no notice of them. If it be true that an antecedent general creditor has no right as against this latent trust, because he did not give credit on the faith of the property bought • with the trust money, which, however, we do not decide, it does not follow that such antecedent creditor, whose right has attached to the thing itself by. superior title, would be thus postponed. His right having attached to the thing itself without notice of the trust, the trust would be thereby postponed to such right. The consideration for the mortgage was valuable, and sufficient to uphold the mortgage, even as against a prior mortgagee, who had paid cash down, but had failed to record his mortgage, provided the latter had recorded his without notice, &c. So here the mortgagee obtains his mortgage to secure an antecedent debt without any notice of the appellant’s prior latent equity. Of course the appellee’s right under this mortgage is superior to the appellant’s equity.

The judgment is affirmed.