90 Ky. 249 | Ky. Ct. App. | 1890
delivered the opinion op the court.
This appeal is from a judgment rendered in two actions consolidated and tried together. One of them was instituted October 11, 1886, by E. Raetz and ■others, creditors of W. H. Whitaker, against parties named, to whom he had executed mortgages, alleged in the petition to have been made by him in contemplation of insolvency and with design to prefer the mortgagees to the exclusion, in whole or part, of •others. The other was brought October 12, 1886, by
J. B., M. L. and P. R. Whitaker against W. H. Whitaker, Gf. S. Hardy, to whom a deed of assignment for benefit of creditors was made October 5, 1886, and others, in which the plaintiffs asked for enforcement of liens existing in virtue of two mortgages executed to them by W. H. Whitaker September 30th and October 4th, 1886, for settlement of the transactions of Hardy, trustee, and sale and distribution of proceeds of the property of the debtor according to rights of parties.
By the judgment two claims were allowed to attorneys, one of them for service in writing the deed
It was further adjudged that by the mortgage made September 30, 1886, to R. H. Caldwell & Son they acquired a lien on the tract of land mentioned, subordinate only to a mortgage lien on the same land, created in 1885, in favor of Evans, administrator, for two thousand one hundred and seventy-one dollars. Hardy, trustee, was not made a party to the action of R. Raetz and others, consequently the chancellor did not- formally adjudge the deed of assignment to be void and of no effect, as prayed by them; nor was the trustee deprived of possession of the property conveyed to him, though he was made subject to the jurisdiction and orders of the court. It thus resulted that the lower court was not authorized to wholly reject the claims mentioned; nor can this court reverse the judgment as to them, as there is nothing to show them unreasonable in amount.
It appears that two hundred dollars of the five hundred dollars, for which W. H. Whitaker gave to Evans, administrator, his note on October 4, was money that day loaned, the residue being a pre-existing debt. It is expressly provided that the statute under con
March 27, 1886, W. H. Whitaker purchased of R. H. Caldwell & Son mules at the price of eighteen hundred dollars, for which he gave his note, payable in six months. According to the statements of Caldwell & Son, they did not then exact of Whitaker mortgage security, which he was willing and able to. give, because they regarded the debt safe without; and, in fact, he was at the time solvent, for, as shown by an exhibit he made, his assets were, in the language of R. H. Caldwell, twice as much as his debts. But they plead, and also testify to a verbal agreement then made, that he was to give to them a mortgage on demand. No demand was made for execution of the mortgage until September 30, three days after the-note became due, and the natural conclusion is, that it was then done because R. H. Caldwell & Son had become convinced of the fact, about which there is now no controversy, their debt was insecure, and in danger of being wholly or partially lost.
Of the three other mortgages executed September-
The case of Brooks, Waterfield & Co. v. Staton’s Adm’r, 79 Ky., 174, was where B. W. & Co., commission merchants, and as such dealers in leaf tobacco, advanced to W. a certain sum of money upon an agreement that W. would purchase tobacco, prize and
In the case of James v Zigler, 9 Ky. L. R., 869, it was held that although a debt Was created upon the faith of the debtor’s promise to transfer a certain claim to the creditor, yet, as the promise could not have been specifically enforced, compliance after the debt was created was an act of preference, and operated as an assignment for benefit of all the creditors. That case is, we think, decisive of the question before us, and, in our opinion, the mortgage to Caldwell & Son operated in the same way, and the chancellor erred in sustaining it.