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HOWARD v. LONDON MFG. CO.
COURT OF APPEALS OF KENTUCKY
72 S.W. 771; 1903 Ky. LEXIS 415; 24 Ky. L. Rptr. 1934
March 11, 1903, Decided
PRIOR HISTORY: [**1]
Appeal from circuit court, Laurel county.
Suit by the London Manufacturing Company against B. F. Howard. From a judgment for plaintiff, defendant appeals.
DISPOSITION: Reversed.
COUNSEL: W. R. Ramsey, B. B. Golden, E. H. Johnson, and H. C. Hazlewood, for appellant.
Jas. Sparks, for appellee.
JUDGES: BURNAM, C. J.
OPINION BY: BURNAM
OPINION
[*771] BURNAM, C. J. In February, 1895, C. L. Troutman recovered a judgment against B. F. Howard for $158.48, with interest and cost, and for the enforcement of a mortgage lien upon the tract of land belonging to the defendant in Laurel county, Ky., to secure the payment of his judgment. A short time after the entry of this judgment B. F. Howard sold and conveyed this tract of land, subject to the judgment of Troutman, to his father, W. M. Howard, as trustee for his seven brothers and sisters, most of whom were infants. After this transfer, in March, 1895, W. M. Howard, for the purpose of paying off this judgment, [*772] contracted with the London Manufacturing Company to sell and deliver to them 60,000 feet of logs, which were to be cut from the land, and by agreement with McKee, the manager of the manufacturing company, and Sparks, the attorney and father-in-law of Troutman, it was agreed that the manufacturing [**2] company should pay the Troutman judgment in dressed lumber furnished to Troutman, and charge its value to Howard's account for the logs, and on the 18th day of November, 1895, James Sparks, as attorney for Troutman, indorsed on the margin of the record of the judgment, "Satisfied in full." After the delivery of the 60,000 feet of logs originally contracted for, Howard continued to furnish logs to the company until he claims they were indebted to him in $1,765.18, on which they paid him, including the Troutman judgment, $1,590.34, leaving a balance due to him of $178.63. On the other hand, the company claimed that it had overpaid W. M. Howard for the logs purchased from him as trustee, excluding the Troutman judgment, and in September, 1899, they procured, for the first time, a written assignment to them of this judgment, and instituted this suit, in which they ask that the indorsement on the margin of the judgment be set aside, and that the deed from B. F. Howard to W. M. Howard, trustee, be canceled, and the land be subjected to the payment of the Troutman judgment. The defendant, by way of answer, relied upon the facts recited above; the question at issue being altogether one of [**3] fact. W. M. Howard testified that in November, 1895, after the delivery of a good many logs, and after Troutman had received the dressed lumber contracted for, he asked that the mortgage be released, and was told by McKee to have Sparks release it; that he immediately went to see Sparks, and Sparks said that he would see McKee before doing so, and went immediately for that purpose, and returned in a few moments, and then went with him to the courthouse, and indorsed the satisfaction of the judgment. Sparks, in his deposition, admits the transaction with him testified to by W. M. Howard, and further says that when he went to see McKee that he understood him to say that the judgment had been settled by Howard, and to release the lien, and that he did so; but that the next morning McKee told him that he did not mean that the judgment had been paid, but only that arrangements had been entered into by which it would be paid by Howard. McKee corroborates Sparks. But the fact remains that no steps to correct the alleged error on the part of Sparks entering the release were made before the institution of this suit, some four years later. W. M. Howard's statements are fully corroborated by [**4] W. R. Grant who says that he was acting as sawyer for the London Manufacturing Company at the time the Howard logs were manufactured, and that McKee told him that he had agreed to take logs from Howard and furnish dressed lumber to pay off the Troutman judgment, and that the judgment had been fully satisfied.
Under this proof, the trial court entered a judgment subjecting the land to the payment of the judgment, and the manufacturing company became the purchaser at the price of their debt, interest, and cost and from that judgment defendant appeals.
We are of the opinion that the decided weight of the evidence in the case is on the side of the appellant All the parties agree that Sparks, as attorney for Troutman, objected to Howard's cutting the timber from the land mortgaged to secure his client's debt until satisfactory arrangements had been made to secure its payment by the manufacturing company, and this was the main inducement which brought about the arrangement made with appellee. Nor is it controverted that shortly after this arrangement was entered into Troutman got the dressed lumber to satisfy his judgment. As the logs were cut from the land of the infant, it was the duty of [**5] their father and trustee to see that their price was applied first to the extinguishment of the lien against the land itself, and it is more reasonable to believe that this course would have been adopted by both appellant and appellee than that they should have applied the price of these logs in other directions. A debtor has always the right to designate the particular indebtedness to which the payments made by him are to be credited. We are therefore of the opinion that the trial court erred in allowing the price of these logs to be applied to other indebtedness due by Howard as trustee to the appellant, if such in fact existed, and leave the lien against the land to be enforced years after it had been stripped of what constituted its chief value.
For reasons indicated, the judgment subjecting the land to the Troutman judgment is reversed, and cause remanded, with instruction to set aside the sale made to appellees thereunder, and to cancel their deed, and for other steps not inconsistent with this opinion.
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