103 Ky. 342 | Ky. Ct. App. | 1898
delivered the opinion op the court.
This action was brought by appellants upon a note and mortgage given by appellees to appellant. The mortgage is on appellee’s homestead.
The answer admits the debt as just and due, and admits the execution of the mortgage to secure it; but pleads that the mortgage was given in consideration that a prosecution for felony then pending by indictment should be discontinued.
This plea is denied. The court gave judgment for the
The proof discloses that appellee, D. B. Green, was indicted in the Magoffin Circuit Court for obtaining money under false pretenses. That appellant, Jasper Owens, was the principal witness, the money being charged to have been obtained from him upon a written order, to the auditor of the State. This note was given for the amount of money charged to have been obtained under false pretenses and some other small debts. Upon the execution of this mortgage the written order was delivered by appellant to appellee and at the next term of the circuit court the indictment was dismissed for the reason, as the Commonwealth’s attorney states, he was informed by appellant, that a conviction could not be had because the order was gone.
Appellant suggested to the Commonwealth’s attorney that appellee, Green, desired the prosecution discontinued. This is shown by appellant’s witnesses, elicited on cross examination. On the other hand, appellee and two others testify to.direct suggestions by one of the mortgagees that if it be given the prosecution would be discontinued. One of these witnesses wrote the mortgage. From this proof it seems clear that the judgment of the circuit court was right and proper, and in accordance with the proof..
Finding no error, the judgment is affirmed.