42 Ky. 247 | Ky. Ct. App. | 1842
delivered, the opinion of the Court.
In 1827, Levvis mortgaged to Charles W. Byrd, a tract of land in Jessamine, and a ferry on the Kentucky river, called the upper ferry, with the lands appurtenant, to secure the payment of $5000. In 1828, Lewis sold the ferry and lands adjoining, to Grimes and Matson, for $15,000, and took their notes for the consideration, some of which notes Lewis afterwards assigned to Outton, who sued Grimes and Matson for the amounts, who set up a defence, and after an angry contest for some time,1 Lewis, Matson, Grimes and Outton, in 1833, compromised, and entered into articles of agreement, by which the contract of sale was cancelled, and Lewis, to secure the payment of the notes which had been assigned to Outton, or rather the advances secured by the assignments, covenanted to make to him a mortgage upon the upper ferry,. and lands appurtenant, and on the tract of land in Jessamine. Lewis had, prior to this compromise, executed to Portwood a mortgage of. the tract of land in Jessamine, and of various articles of personal property, to secure him in the payment of $1200, acknowledged to be owing. This mortgage was duly recorded, but there is no
At the February term, 1839, the cause was submitted to the Court for hearing, and an interlocutory decree rendered, determining that Portwood did not acquire by his purchase, a fee-simple in the upper ferry, as Outton was not party to the suit in Mercer, but that Byrd’s lien being
The decree of Mercer, rendered in 1835, in favor of Byrd’s devisees, two years after the insti tution of Outton’s suit and to which decree he was no party, cannot affect Outton’s rights; nor can Portwood’s purchase under it ■invest him with the absolute title. He purchased while
Had he move,d the Court to set aside the interlocutor, and grant a re-hearing, the Court would not have been bound to do so, as a matter of course, in order to admit other evidence of any kind, and ought not to have done so, unless for good cause shown. And if the new evidence offered was within the power of thepaty, and by sheer negligence had not been filed before the hearing, it would certainly not have been the duty of the Court to grant the indulgence. But no motion was made, and
We perceive, therefore, no error in the decree, to the prejudice of Portwood.
Nor are any of the cross errors assigned by,Outton, in our opinion, sustainable.
1. Though the decree in favor of Byrd’s devisees, from the facts exibited on the hearing, cannot be made to overreach the decree in this case, yet it is clear that the devisees lien upon the upper ferry, purchased by Port-wood, is prior to the lien of Outton. Its priority and validity is acknowledged in the article of compromise, and Outton agreed to yield to its priority, in case the mortgage was executed to him by Lewis, and seeking to enforce his lien upon the property, to the same extent as if the motgage had been executed, he can obtain it upon no other terms than those to which he agreed to submit, in case the mortgage had been executed Besides, there are other facts in the record, satisfactorily evidencing the priority of Byrd’s lien, which we will not stop to enumerate. The devisees lien being elder and superior to Outton’s, Portwood, to ihe extent of the money that he paid upon his purchase, in discharge of their debt, has an equitable right to be substituted to their prior lien, and to require that the money so paid and interest, may be first made out of the sale of the ferry, subject however to a deduction for rents and profits received by him from the same, which Byrd’s devisees, had they received them, would have been required to account for in satisfaction of so much of their lien.
2. The debt of Byrd’s devisees, secured by their lien, was in fact never paid, and the shuffling and changing of notes between Lewis, the administrator and debtor, and Grimes and Matson, -with a view to its postponement, cannot have the effect to extinguish their equitable lien. Lewis,- the debtor,, stood in a double fiducial relation to them, and will not be permitted, in a Court of Chancery, by arrangements with others, with respect to his own debt, to lessen the security for its ultimate payment.
3: Though Portwood’s mortgage upon the farm and other property had no seal or scroll, and was not a recordable instrumet witin the statute, and consequently the placing it on record was not constructive notice to subsequent purchasers and creditors, yet it transferred to Port-wood an equity, and that equity is prior in time to the equity of Outton, which consists in a mere covenant to mortgage, and between mere equities, the elder must prevail, with or without notice. Outton had no more right to require notice of Portwood’s equity than Portwood had a right to require notice of his. Moreover, we are satisfied, from the proof in the cause, that Outton had notice of Portwood’s equity before his own was created.
4. By the agreement or acquiescence of all parties, including their attorneys, the lower ferry, which was to be surrendered and transferred by Grimes, as a part of the compromise, was to be secured for thé benefit of Mrs. Lewis and her children, as a pittance out of the wrecked estate of her husband, and the ample fortune which she had brought to him on their marriage; and the conveyance was accordingly made to Portwood for their use. Outton tacitly consented to, and acquiesced in this arrangement, and was content to receive and look to the provision which was made for him. Under these circumstances, a Court of. Chancery will not aid him in disturbing this just and equitable provision made for a destitute wife and children.
The decree is therefore affirmed, as well upon’ the errors assigned by Portwood, as on those assigned by Out-ton’s administrator.