50 Ky. 332 | Ky. Ct. App. | 1850
delivered the opinion of the Court.
Joseph J. Courier was the statutory guardian of the complainants, and as ' such had in his hands, :$> . He was also largely indebted to other persons. John Collier was his surety in his guardian bond. On the-ith Oct. 1841, said Joseph J. Collier made his mortgage to various creditors and sureties, of all his estate. After setting forth the estate conveyed, and the several debts and liabilities intended to be secured, the deed provides that if said Collier “ shall pay off and discharge the above named debts and liabilities, and save the said persons from all loss or damage, the above obligation shall be void, or else remain in full force; but if the said Joseph J. Collier shall fail to pay off said
“Geo. Robinson’s children, $800.
“ Elizabeth Collier debt suit, $2421 50.
“ Interest in estate of grandfather and father’s estate valued at $2000, and household and kitchen furniture, exempt from execution, $150,”
So far from such an arrangement as is contained in the foregoing extract, indicating a desire and intention in good faith to secure these absent creditors, it cannot but be looked upon as an arrangement to pay themselves out of the valuable and available estate, and to leave the absent and unprotected widow and children to the delusive hope of receiving something from other sources. But ii tills was done in good faith, it turns out ihul the wards have received nothing, the slaves after-wards received by Collier, having been immediately transported to some distant State. No formal and binding release is proved to have ever been executed by John Collier, even if such act of his, under the circum
In such case the decree proper to be rendered is clearly suggested in Dickey vs Thompson, (8 B. Monroe, 313.) The several parties who have received the property, should be compelled to bear, rateably, ■ the common burden. Their several portions to be ascertained by the value of property received by each, and inasmuch from the nature of some of the property, it may long since have perished, and it would be difficult, if not impracticable, to ascertain its actual worth at the time of distribution, and as it may be presumed that whether the valuation then fixed upon it was high or low, it was as to the parties receiving it, set apart by the same scale of value, no injustice can be done to them, by requiring them to account for it according to the value fixed upon it by themselves. But before any further decree shall be rendered, the Court should cause all the mortgagees or their representatives, to lie brought before the Court as parties to the suit, so that as far as may be possible, the Court may on due enqui ■ ry into all the facts, render justice to each.
r The mortgage provides that the debts first named in the list, shall be first paid, and the whole debt when any one of the mortgagees are security, to be paid. The parties anticipated that there was not property enough to pay them all in full, and the grantor designed to give a preference to some of them, and particularly to his securities. The Court should ascertain how much was actually due to each mortgagee at the time of the dis
The decree is reversed, and the cause remanded to the Circuit Court with directions to set aside the decree, and for other proceedings not inconsistent with this opinion.