79 Ky. 346 | Ky. Ct. App. | 1881
delivered the opinion op the court.
This case has been heretofore decided, but on a petition-for a rehearing, we have deemed it proper to discuss more-fully the questions raised, although satisfied that the doctrine announced is neither so novel or uncertain as to require-an elaborate argument in support of it.
On the 23d of December, 1875, Grigsby and wife borrowed of Ballou $6,000, and executed to him a mortgage on. a certain tract of land to secure its payment. Ballou, on the 19th of September, 1878, filed his action in equity in the Lincoln circuit court, asking a sale of the land to satisfy the mortgage debt. Prior to the execution of this mortgage, Grigsby and wife (the wife then trading as a feme sole, and. empowered to act as such) had executed a mortgage to the appellee Hayden on this land, to secure him in the payment of $5,324. This mortgage was dated on the 26th of April, 1869, and the note payable in three years from that date. This land belonged to the wife (Mrs. Grigsby). Ballou made Hayden a defendant to his action, alleging the existence of his lien, and on the 30th of September, 1879, Hayden filed his answer and cross-petition against Mrs. Grigsby (the husband being dead), asking an enforcement of his lien, and also a judgment in personam. On the 30th of October, 1879, the appellant, Mrs. Hart, filed a petition to be made a party to the action of Ballou, making it a cross-petition against the mortgagor, Mrs. Grigsby, in which she alleges that the latter, on the 21st day of March, 1879, executed to her (Mrs. Hart) a mortgage on the same land to secure the payment of $20,000, evidenced by certain notes, and due five years from that date. She alleges the-insolvency of the obligor, the insufficiency of the land to satisfy all the mortgage debts, and asked to be allowed to-
While the appellant is not in a condition to coerce payment of her debt, there is no reason why the estate given or pledged to secure its payment should not be preserved as •against those who have no claims, or are asserting liabilities •that ought not to be enforced by the chancellor.
The probability that the debtor may, when the debt of 'the appellant matures, be in a condition to pay it, furnishes no ground for refusing the relief asked, when it is manifest, 'if her petition is denied, her security is not only likely to be ■diminished, but her entire debt lost. This is upon the assumption that the statements of the petition are true, and
Mrs. Grigsby may not have pleaded usury, or may be willing to a judgment selling the land for appellee’s debt; still she cannot, either by her silence or a refusal to plead, permit this property upon which appellant’s lien exists to. be sold for a debt based upon a vicious consideration. The plea of usury is not a'personal privilege, and with such allegations as are contained in appellant’s petition, any defense that the debtor could have made to the merits of the action should be allowed to be made by the appellant. She had the right to go into a court of equity because of the equit
What remedy has the appellant if he is not permitted to file his petition? His petition is dismissed because the .appellant is a lis pendens purchaser. When the property is sold, the purchaser will hold, because the appellant is a lis pendens, purchaser, and the appellee will- be entitled to the proceeds for the same reason; so the inevitable result of the position assumed by counsel is, that appellant in such a case is without a remedy. As the law now exists, the plaintiff, Ballou, in the original action, was compelled to make those holding liens at the time of the institution of his action parties to it, and when they came to assert their ■claims, if invalid, any party acquiring an interest in the land may resist the recovery, whether before or during the pen-dency of the action, upon equitable grounds. The action of the court below is also sought to be maintained on the ground-that the appellant’s debt is not due, and therefore ■-the right to ask the aid of the chancellor should be denied.
When the chancellor has subjected the property to its legal or equitable burdens, he has rendered complete justice to all the parties, and will not refuse the relief because the appellants’ debt is not due. The remedy sought here may be regarded as provisional only. The parties having liens on the same land are all before the court, and when the insolvency of the debtor is shown,.and the insufficiency of the land to satisfy all the alleged liens is conceded, the chancellor will have no difficulty, having jurisdiction of the parties and the, subject-matter, in determining their respective rights.
A refusal to listen to this complaint would deprive the appellant of a valid subsisting lien, and give to the appellee a judgment for an alleged claim that has no existence in fact, or if so, is usurious.
Mrs. Hart may have had a knowledge that the appellee was enforcing an alleged lien on this land, and to the extent
Judgment reversed, and cause remanded for further proceedings consistent with this opinion.