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Helm vs. Logan's heirs.
COURT OF APPEALS OF KENTUCKY
7 Ky. 78; 1815 Ky. LEXIS 51; 4 Bibb 78
May 31, 1815, Decided
DISPOSITION: [**1] Decree affirmed with costs.
JUDGES: Judge OWSLEY. Absent, Judge LOGAN.
OPINION BY: OWSLEY
OPINION
[*78] Absent, Judge LOGAN.
OPINION of the Court, by Judge OWSLEY.--The sheriff of Lincoln county having in virtue of a writ of fieri facias which issued upon a judgment obtained by Robert Caldwell against Joseph Ballenger, taken several [*79] negroes which were found in said Ballenger's possession, and being about to dispose of them to satisfy that execution, both Jno. Logan, the ancestor of the appellees, and Jos. Helm, the appellant, set up claims to the negroes; the claim of Helm was made under a mortgage from Ballenger for the same negroes, and that of Logan was made as the original proprietor; and for the purpose of ascertaining whether they were subject to the execution, a jury was empannelled by the sheriff, and the negroes condemned to be sold. The sheriff accordingly exposed the negroes to sale, and John Logan became the purchaser and paid the purchase money.
At the time the inquest was had by the sheriff, a suit was depending in favor of Helm against Ballenger, for the purpose of foreclosing his mortgage; and since then a decree has been made in that suit foreclosing Ballenger's [**2] equity of redemption, and directing a sale of the negroes to satisfy Helm's demand; and although the possession of the negroes could not be procured, they were actually sold by the commissioners appointed under that decree, and purchased by Helm.
But as Logan was no party to that suit, and refused to deliver the negroes to Helm, this suit was brought by Helm in the Franklin circuit court against the heirs of Logan, (he having previously departed this life) and that court being of opinion Helm manifested no equity, refused him relief and dismissed his bill with costs. From this decree Helm has appealed to this court.
The mortgage of Helm appears never to have been recorded, and hence whatever efficacy it might have as against Ballenger, with respect to his creditors it must be held fraudulent and void.
As against Caldwell, therefore, who is proven to have been the creditor of Ballenger, that mortgage could have no possible effect. But it is contended that although the mortgage may be void with respect to creditors, yet it cannot be so considered as to purchasers with notice; and as Logan made his purchase from the sheriff with notice of the mortgage, as respects him and his representatives [**3] it is urged the mortgage must prevail. This doctrine cannot be admitted to be correct. Nothing could be more absurd than the recognition of such a principle. What would be its consequences? As to creditors the mortgage is void, but as to purchasers under the execution of the creditor with notice, the mortgage [*80] it is contended is valid. The creditor cannot enforce the collection of his demand without execution. There must a purchaser intervene. If no other person becomes the purchaser, the creditor will be left to the alternative either to purchase himself or loose his demand; and if he purchases, he thereby looses his character of creditor, and according to the doctrine contended for, as a purchaser with notice cannot be protected. A doctrine fraught with such consequences we are not prepared to recognize. And we think the mortgage of Helm not only invalid as respects creditors, but must be so held with respect to purchasers under the execution of creditors.
The right of Helm in this cause is not however made to rest solely on Logan's liability as purchaser with notice; but he further alleges that shortly previous to the inquest taken by the sheriff, an agreement was entered [**4] into between him and Logan, whereby Logan agreed to pay his demand upon Ballenger, in lands. This agreement is not only denied by the answers of the appellees, but they also rely upon the statute against frauds and perjuries in bar thereof.
If such an agreement were made, it is apparent that it was merely voluntary, without any consideration: for no other consideration is pretended but that Helm was to let him have the benefit of the mortgage on Ballenger; and it is abundantly proven that Helm since that agreement has claimed the benefit of the mortgage, and actually prosecuted the suit which was then depending to final decree, and used every possible means to obtain, in virtue of the mortgage, the negroes purchased by Logan.
But could this objection to that agreement be removed, still there exists another insuperable bar to the relief asked: for it is not pretended that agreement was reduced to writing; and as it related to land, it cannot be binding on Logan or his representatives.
We are therefore of opinion that upon no ground can Helm be entitled to relief, and that the decree of the court below must be affirmed with costs.
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