46 Ky. 388 | Ky. Ct. App. | 1847
delivered the opinion of the Court.
Williams, the surety of Lair in the debt to Kirkpatrick, having paid the debt, bad alone the right to demand and sue for, any usury that it contained. Wherritt, as assig. nee, of Lair, who became a bankrupt, was only invested with the same right to this usury, that Lair the bankrupt had.
The security having paid the usury, has a right to reclaim it, unless he has been re-paid by his principal, or has in his hands, belonging to his principal, the means of re-payment, or has done some act by which he has divested himself of this right.
It is not pretended that Williams has had this money refunded to him from any quarter. The mortgage executed by Lair to indemnify him on account of this security-ship and other liabilities, is wholly insufficient for that purpose, it being proved that it will not pay more than half the amount.
What claim then has the assignee in bankruptcy to this usury? It appears that be has executed a release to Williams of all claim to the mortgaged property and Williams has released to him all claim against the estate of the bankrupt. The substance of this arrangement is, that the assignee deeming the property mortgaged insufficient to pay the debts, and the equity of redemption of no value, has released it; and that Williams, in consideration thereof, has released the balance of his demands against the bankrupt, that may remain unpaid after the mortgage
The assignee in bankruptcy having brought this suit for the usury, and the Circuit Court having rendered a decree in his favor, it is erroneous and must be reversed, and cause remanded, with directions to dismiss the complainant’s bill without prejudice, unless he chooses to amend his bill and bring Williams before the Court, for the purpose herein suggested.