66 Ky. 356 | Ky. Ct. App. | 1867
delivered the opinion oe the court:
There is a class of agreed and disputed facts, each, in this ease; of the first, are, that Thos. A. Ireland and W. J. Ford sold the land to Wm. Thornberry, who paid them two thousand four hundred dollars, and executed his notes for the remainder of the purchase price. After-wards, Thornberry sold the land to Riley, who paid nothing, but executed his several notes for the purchase price, and Thornberry assigned to him Ireland and Ford’s title bond.
Two of these notes were assigned by Thornberry to Baer, who again assigned them, and, after passing by several assignments, finally came to Berryman, as assignee. Riley not being able to pay for the land, by agreement and participation of all the parties concerned, it was sold to Thos. A. Moss, as trustee for his parent, for a sum less than Riley was to give Thorn-berry. Moss then executed his notes to Thornberry for the amount due from him to Ireland and Ford, and for the remainder in another note, who immediately as
After these transactions, Moss gave to Ireland and Ford separate notes for that portion due each, of his original note executed to Thornberry, and assigned to them jointly, and gave to Ford personal security. Ireland sued and obtained judgment on his note, and had execution in the officer’s hands, when, August 1, 1862, he and Ford made and acknowledged to Moss a deed, in consideration, as recited, of one thousand three hundred and fourteen dollars and fifteen cents, the amount of his judgment and acknowledged payment in full of the consideration; and Ireland, being the county clerk, had the deed recorded, the same . day he had the land levied on by the execution, and became the purchaser himself at the sale. He very soon thereafter joined the Confederate army and left the State.
Berryman filed his petition setting out the facts, claiming a prior lien, and alleging that the making said deed was a fraud upon his rights. Ireland was proceeded against as an absent defendant. The court rendered a judgment subjecting the land to Berryman’s debt on Moss; but,Ireland having returned, was permitted to file his answer and open the judgment. The case then proceeded to judgment again, and the court affirmed the former judgment, and Ireland seeks a reversal.
• There is much controversy and pleading and evidence as to whether Berryman was to have the prior lien in the arrangement by which the land was sold to Moss, most of which we deem immaterial; because Berryman, at least,
The making of this deed was, unquestionably, a fraud upon Berryman’s rights, and could in no possible view affect his lien as between the original parties. But Ireland and Ford having voluntarily made it, without Berryman’s knowledge or consent, it is binding upon them, and had the legal effect to waive all liens which they held as vendors. •
The only lien Ireland then held was his execution lien, and, like any other execution creditor, this lien was subordinate to Berryman’s vendor’s lien; and no matter what may have been the original understanding of the parties when Ireland and Ford, by their own voluntary act, destroyed their- vendor’s lien, Berryman then became the holder of the prior lien, as his, being the only vendor’s lien, would be prior to Ireland’s execution lien. Ford seems to have been paid; at least he is not complaining; this litigation being entirely between Ireland and Berry-man.
The answer of Ireland really presented no legal reason for opening the judgment; still, as the court correctly, on the final trial, adjudged to Berryman the prior lien, and as this was manifestly right, though it may
