39 Ky. 198 | Ky. Ct. App. | 1839
delivered the Opinion of the Court.
In June, 1822, William Fenwick filed, in the Fanklin Circuit Court, a bill in chancery against Alexander Macey, for the redemption of some slaves of whom Macey had been possessed for several years, under a written transfer from Fenwick, which the latter claimed to have been a mortgage.
In 1825, during the pendency of Fenwick’s bill—which had been revived against Macey’s executors—The Bank of Kentucky, claiming a lien on the same slaves, and other property, under a mortgage given to it by Macey and one Lewis, in February, 1822, antecedently to the filing of Fenwick’s bill—filed a bill in chancery in the same Court, against Macey’s executors and others, praying for a foreclosure and sale.
On the 6th of August, 1830, the Circuit Court, being of the opinion that Fenwick’s title to relief had been lost by lapse of time, dismissed his bill. And, on the next day, rendered a decree in favor of the Bank, for subjecting the mortgaged estate to sale, and appointed Macey’s executors commissioners to execute the decree.
In February, 1831, two of those commissioners made the sale to an amount nearly equal to the debt due to the Bank; and the slaves claimed by Fenwick were at that sale purchased by Leander W. Macey, a son of Alexander Macey, deceased, for sums apparently much below their presumed value.
Afterwards, this Court reversed the decree dismissing Fenwick’s bill, and remanded the case with instructions to decree the unconditional restitution of the slaves to him, by Macey’s executors.
A decree for restitution having been accordingly made by the Circuit Court, the executors failed to comply with it; and, being cited to show cause why they should not
But the Circuit Judge, being of the opinion that Leander W. Macey was concluded by the decision in the case of Fenwick against A. Macey’s Executors, decided that the response was insufficient; refused to permit any further proof or litigation, and made an order that a process of the nature of an execution in detinue, should be issued against Leander W. Macey, for the slaves in his possession, embraced in the decree against A. Macey’s executors.
This appeal brings up that decretal order for revision.
As there was no lis pendens at the date of the mortgage of February, 1822, the Bank, as mortgagee, was not & pendente lite purchaser; and therefore, never having been a party to Fenwick’s suit, instituted after the date of that mortgage, the Bank cannot be concluded or affected, in judgment of law, by the decree rendered in that suit against Macey’s executors, who were the only parties.
Nor was Leander W. Macey, as purchaser, concluded by Fenwick’s decree, merely on the ground that his pur
And, for the like reason, if Leander W. Macey, though not a party to Fenwick’s suit, had received from his father’s estate assets sufficient for redeeming the slaves from his father’s mortgage to the Bank, it may perhaps have been his duty to Fenwick, to redeem them, and his purchase of them at the sale, under the decree on that mortgage, might, on that hypothesis, be treated as a virtual redemption, in the view of a court of equity, extinguishing pro tanto the Bank’s lien for Fenwick’s benefit, and removing out of his way the conflicting claim of the Bank, as a subsequent encumbrancer, with a title which, though derived from Alexander Macey, might possibly be availing against Fenwick, notwithstanding the fact, adjudged in the suit of Fenwick vs Macey, that,as between them alone, Fenwick’s title was the best.
Had he been a party to Fenwick’s suit, though his title derived from the Bank, might, notwithstanding the decree in Fenwick’s favor have been as available in a new suit, as it would be in the hands of the Bank itself, yet we should incline to the opinion that he should not be permitted to urge it against the mandate of this Court, directing him to surrender the slaves to Fenwick’s representatives; but that he should first obey the mandate, and then, in an original and independent suit, assert his derivative claim, unaffected by the decision on Fenwick’s bill; for had his purchase been made before the case was first heard in the Circuit Court, it would have been his duty, if he intended to insist on it against Fenwick, to present it for litigation in that suit; and having failed to do so, he should not be permitted to urge it against the enforcement of the final decree rendered in Fenwick’s favor; and he should not, as we are inclined to think, be allowed to resist a decree to which he was a party, by setting up against its enforcement any new and independent title, acquired by his own voluntary act, after an appeal to this Court for a final decision on the facts which had been litigated.
But L. W. Macey, though represented by his father’s executors, and therefore concluded as to the question of title between those representatives and Fenwick, was not, in fact or in form, a party, and could not, therefore, have been personally subject to any decree which could have been rendered. No decree was rendered against him." He does not deny that, so far as his title, as distributee or heir, may be concerned, the decree against the executors is conclusive against him.
A petition, of the nature of a supplemental bill, was filed against him. He may have a right, as we think, to answer that petition, and litigate his claim. He avers, in his response, that he purchased the slaves for himself, in good faith and with his own means; and we should not presume the contrary, or that he had assets, by devise or descent, with which it was his duty to redeem the slaves. Whether he had received such assets or not; or whether the purchase was a mere contrivance for evading any decree which Fenwick might obtain; or whether the price was paid otherwise than by the proceeds of that sale, may be important questions for ulterior consideration, upon a full investigation of all the facts, and should not be prejudged. Upon the face of the response to the petition, a a prima facie case is made out in favor of the right of L. W. Macey to litigate his derivative claim, before he shall be compelled to surrender the slaves in satisfaction of a decree to which he was no party, and which cannot be addressed to him, without some supplemental procedure and decretal order; which in our opinion, he shows a prima facie right to meet and resist.
As it does not appear that L. W. Macey bought the slaves with assets in the hands of the executors or assets which had come to himself from his father, or whether in fact, any such assets had ever come to him, it would be premature and rather extrajudicial, to determine now, whether, if he had received assets equal to the price bid for the slaves, it was his duty to redeem them for Fenw
Nor can we now decide whether the mortgage to the Bank includes the slaves now in controversy. Perhaps it does not. But upon the facts exhibited in the record, we should be inclined to the conclusion that it does. Whether it does or not, can be satisfactorily determined only by extraneous facts not now appearing.
The decretal order against L. W. Macey, is therefore reversed, and the cause remanded, for further proceedings according to the principles of the foregoing opinion.