83 Ky. 154 | Ky. Ct. App. | 1885
delivered the opinion of the court.
diaries Geisbauer, at the time of his death, was: the owner of a large brewery in the city of Covington, including all the realty upon which it was located, and the fixtures and personalty usually belonging to such an establishment. He was largely indebted to the Northern Bank of Kentucky, and. other parties, whose debts were finally paid off by money obtained from the bank, in the following-manner : The children, or devisees, and the executor-of the will of Geisbauer being desirous of having-the debts paid, and to prevent' a sale of the property, at the instance of creditors applied to the-. Northern Bank of Kentucky for a loan of $60,000,.
The bank declined to take a mortgage, as the proof shows, and, by subsequent negotiation, purchased the entire brewery of the widow, heirs, and ■executor for the sum of $60,000, and obtained an absolute conveyance therefor. The bank, at the time of the purchase, and when it acquired the absolute title, agreed to sell, and did sell, to Louis Geisbauer, a son of the decedent, the same property on .-a long credit, with the agreement to re-convey to him ; and the further agreement that if any of the notes were not paid at maturity, the whole of the purchase money should, fall due. Louis Geisbauer failed to pay one of the installments, and a suit was instituted by the bank to enforce the vendor’s lien; -and, at the instance of the bank, Louis Geisbauer .having been in the possession of and running the brewery, and without objection, the entire brewery, with all the fixtures and personalty used about the •establishment, and the beer on hand as well as the books, were placed in the hands of a receiver as the ■property of Louis. The debts of the estate of his father had been paid by the bank,' or the money ob_ -tained under its purchase, and those debts were no ■longer in existence. The bank did not propose to run the brewery, but made the purchase to secure its own debt, and then sold it to Louis, on a long ■credit, for near $80,000. The parties in interest, who were liable for this debt to the extent they received assets from the original debtor, were no longer liable. The executor of the debtor was released by
All he purchased was the real estate on which the brewery stood, with the boundary specifically given. This included the building itself and the. fixtures; and, no doubt, as is alleged by the bank, included all the beer, ale, malt liquors, horses and wagons, and personalty used about the establishment. The latter entered into the possession as-purchaser, and these appellees furnished him material and supplies, and gave him credit on the faith of the profits in his possession and under his control. How far the lien of the bank extended, is the-question involved here. That it had a vendor’s lien.
It is argued by counsel for the bank, that because' the entire brewery was placed in the hands of, and taken into custody by, the court’s receiver, that this, gave the bank a lien, or rather made it a lis pen-dens against the creditors of Louis.
These creditors, by attachment, levied on this property, or its proceeds, including the property acquired, by Louis after his purchase, and were made parties, to the action by the bank, and the cases consolidated.
The proceeding seeking to subject the fund was in. accordance with the provision of the Code. The institution of the action by the bank to subject the-property, including the realty, the personalty, book accounts, etc., upon the idea that a lien existed, did not, of itself, create a lien, nor was it such a Us pen-dens as gave the bank a right to subject it to the, payment of its debts, for no other reason than that a receiver had been appointed, without objection, and the property sold. If no lien existed on the personalty, as between Louis and the bank, the Chancellor, unless the bank had adopted some provisional remedy, would have ordered the proceeds of the personalty paid over to the debtor. A fair construction, of the contract of sale, in the light of the pleadings, and proof, gave to the bank as between it and Louis. Geisbauer a lien on all the property, real and personal, that had been purchased by the bank and sold
Before 'the creditors, however, assert their claims, the bank has this property or its proceeds in court for the purpose of discharging its lien as against Louis, and this lis pendens operated to defeat the ■claims of the- attaching creditors as to this prop-erty. Not so as to the property acquired by the vendee after his purchase, except such as should ' be properly denominated fixtures. There was no lien retained on the after acquired property, or on the accounts and demands due Louis after his pur- • chase. This amounted, as the record shows, to over $6,000, and was directed to be paid by the judgment to the appellees. The appellant, the bank, had no right to subject it. It had no lien on the property ■or the accounts as between it and Louis, and, therefore, there was no reason why any creditor might not intervene so as to reach the fund in court; that, . as between Louis and the bank, the latter had no lien ►upon or right to subject as the pleadings stand.
If the position of counsel is the correct one, then all provisional remedies could be dispensed with, as the action itself would constitute the lien,
. The cases of Scott v. Coleman, 5 Monroe, 73; Watson v. Wilson, 2 Dana, 406; Scott v. McMillen, 1 Littell, 302, can not be made to apply to this case.
It is not necessary that the plaintiff should have a specific lien. He may, by his return of no property, assail a fraudulent conveyance, and the action is a lis pendens so far as subsequent attaching creditors are concerned. It creates a lien against all subsequent creditors who are seeking to reach it by provisional remedies; but a mere action to subject that upon which the party has no specific lien, and without any equitable grounds that would authorize the Chancellor to subject it, creates no lis pendens.
The fact that the money is in the hands of an officer of the court and is the proceeds of property sold in the action, does not authorize the- Chancellor to ■ direct its payment in discharge of the judgment or in its partial discharge. This is not a proceeding to settle up an insolvent estate, nor a trust estate, nor is it a suit for distribution between creditors, but is an action to enforce a vendor’s lien; and the question as to priority of right arises as between the vendor and the attaching creditors.
This case is not affected by the act of March 20, 1876, providing for liens- on behalf of laboring and
In the settlement made by the commissioner it appears that the proceeds of the personalty accumulated by the debtor, including the accounts due, him, etc., amount to as much as the Chancellor has awarded the appellees, who were the attaching creditors ; and, therefore, this judgment will not be disturbed, either on the original or cross-appeal.. Nor can we see in what way the bank has been, prejudiced by the order of court sustaining the attachments. The bank has no .interest in the after-acquired property, and the debtor is not complaining, nor has he controverted the grounds of the attachment.
The judgment is affirmed on both the original and. cross-appeal.