140 Ky. 731 | Ky. Ct. App. | 1910
Opinion op the Court by
Reversing.
On March 28, 1861, Greenville Sailsberry, Lackey Sailsberry and Robert Sailsberry executed to J. M. Burns a note for $199.20 and a mortgage on certain lands
‘ ‘ The court below should have ascertained the amount which had been paid Lackey Sailsberry, and the amount which had been paid by Greenville Sailsberry on the debt to Burns and treated it as their joint debt (as Robert was insolvent), and made each pay an equal amount in the discharge of the debt due Burns, except the small part which was the individual debt of Lackey Sailsberry, and this amount should be deducted in ascertaining the joint liability of the parties. As to this small part of the judgment the statute of limitations had barred the right of Burns to collect it from the appellant, as he was only surety therefor. When the appellant paid that part he was a volunteer, and is not entitled to recover it.”
After the return of the case to the circuit court Green-ville Sailsberry died and within a year after his death, a petition was filed in the name of his personal represen
After the case had been revived, L. C. Sailsberry who had bought the land of Lackey Sailsberry which was sotight to be subjected and had been made a party defendant to the action, tendered an amended answer in which he alleged that the land of Bobert Sailsberry was mortgaged to Burns to secure the debt, as well as the land of Lackey Sailsberry and Greenville Sailsberry, that Greenville Sailsberry. had purchased from Bobert his land that was mortgaged with full knowledge of the mortgage lien and subject to it. He prayed that Bobert Sails-berry ’s land in the hands of Greenville Sailsbérry be subjected for the payment of Bobert’s part of the debt before the land of Lackey Sailsberry was subjected to its payment. The court refused to allow the amended answer and counterclaim to be filed; and the case being submitted, he entered a subject against Lackey Sailsberry’s land for one-half of the amount which Greenville Sails-berry had paid on the debt. From this judgment L. C. Sailsberry appeals.
It is manifest that the judgment does not follow the mandate of this court. There is no doubt under the evidence that Lackey Sailsberry paid one-third of the debt, and Greenville Sailsberry two-thirds, being his one-third and Bobert’s one-third. All that Lackey Sailsberry owes Greenville Sailsberry in any event under the mandate of this court is one-half of Bobert’s third, and in determining this the court should have deducted the individual debt referred to in the former opinion. From all the evidence we now fix the amount of this individual debt on July 26, 1890, at $53.87, which leaves the amount paid by Greenville Sailsberry $421.22. One-half of this, $210.61, should have been paid by Bobert. But it is manifest that although Bobert is insolvent, still, as his land was mortgaged as well as the land of his brothers, his part of the debt should be enforced first against his land before any part of the land of his brother is sold for its
The transcript is not incomplete. It is true that where an appeal is granted by tlie clerk of this court, notice must be given if a schedule is filed by the appellant directing less than the whole record to be copied for this court. But in the" case at bar, the appellant lias brought up the entire recoid since the last appeal, and has placed tlie old record with tlie transcript; so that we have before us a complete record.
Judgment reversed and cause remanded for further proceedings consistent herewith.