50 Ky. 282 | Ky. Ct. App. | 1850
delivered the opinion of the Court.
In 1823, John Hunt recovered against Benjamin F., and Samuel Dupuy, a judgment for $458, with interest and costs, an execution on which was shortly after-wards returned “no property found.”
In 1845, Hunt having previously died, his administrator revived the judgment, and caused an execution to be levied on devers slaves as the property of Samuel Dupuy. These slaves having been claimed by Philip Johnson as trustee of Mrs, Dupuy, (the -wife of said Samuel,) and her children, a jury found that they were not subject to the execution, which was consequently returned “no property,” &c. Whereupon, Hunt’s administrator filed this bill, for the purpose of subjecting said slaves to the judgment. The bill alleges in substance that Johnson claims the slaves as trustee of Mrs. Dupuy and her children, under a pretended deed of trust from Samuel Dupuy, which in fact never existed, and which if ever made was fraudulent and void, as Dupuy was hopelessly insolvent. It further alleges that Dupuy had mortgaged the slaves many years since to one Allen, but the mortgage debt had been long paid, and that Dupuy had remained in possession of the slaves ever since the date of the mortgage in 1842, and Allen had no claim under it. Johnson, Allen, and the Dupuys are made defendants, and the prayer is, that the slaves be subjected to the judgment, and for general relief.
Samuel Dupuy and wife, and their children, set up in their answers the following facts, which are substantially supported by the evidence — that Mrs. Dupuy had
It appears however, that the mortgage title to the slaves was never conveyed to Johnson the trustee, nor was otherwise transferred or released by Allen, the’ mortgagee. Although he admits that the mortgage has been satisfied, and to agreat extent by themeans above referred to. If the mortgage debt had been paid by Dupuy himself, the title might have resulted to him- by operation of law, or if not, it would have been held in trust for him, and would in either case have been liable
As the mortgage debt was not paid by or for Dupuy, but by others for their own use, and as the legal title which was duly recorded, remained in the mortgagee to answer the equities in favor of the trustee and beneficiaries, they must he entitled at least to the same benefit from the mortgage as he would be entitled to, if ■ he were still the creditor or surety of S. Dupuy, for so much of the original debt as has been paid to him by them. And as the recorded mortgage would, so long as the subsistence of his demand could be proved, have secured to him a precedence over general creditors, notwithstanding the continued possession of the mortgagor, unless it were shown to have been kept on foot for a fraudulent purpose, so must it equally secure a precedence to those who are substituted to his rights, 'even though the possession should be deemed to have continued in S. Dupuy alone. But no fraud is alleged or proved, either in the mortgagor or the mortgagee. And as the money was paid for the purchase of the slaves for the sole use of Mrs. Dupuy and her children, a possession corresponding with the intent of the pur
Wherefore the decree is affirmed.