2 S.W. 647 (Ky.App. 1887), Cotton v. Graham

Citation:2 S.W. 647, 84 Ky. 672
Opinion Judge:PRYOR, C.J.
Party Name:COTTON, Trustee, v. GRAHAM and others.
Attorney:Wm. Lindsay and W. McKee Duncan, for appellant, Cotton, Trustee. James S. Pirtle, for appellees, Graham and others.
Case Date:January 06, 1887
Court:Court of Appeals of Kentucky
 
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Page 647

2 S.W. 647 (Ky.App. 1887)

84 Ky. 672

COTTON, Trustee,

v.

GRAHAM and others.

Court of Appeals of Kentucky.

January 6, 1887

Appeal from Louisville law and equity court.

The appellees, Elisif Graham and others, describing themselves as legatees of Samuel Parker, deceased, executed to the appellant, Cotton, as trustee for Amelia Parker, their joint note for $5,000, with interest, and gave a mortgage to secure the note. The consideration of the note was recited to be for value received, and out of love and affection for said Amelia as the wife of a deceased brother. Some of the obligors on the note paid some interest; but, they and the others refusing to pay any more, the trustee brought this suit against them to recover the amount of the note, and enforce the mortgage. Appellees demurred, and, the demurrer being sustained, appellant appealed.

Page 648

Wm. Lindsay and W. McKee Duncan, for appellant, Cotton, Trustee. James S. Pirtle, for appellees, Graham and others.

PRYOR, C.J.

The appellees, who describe themselves as legatees of Samuel Parker, deceased, executed to Charles B. Cotton, as trustee for Amelia Parker, wife of William Parker, deceased, their joint and several obligations for the sum of $5,000, payable on the first of March, 1875. The consideration of the obligation is for value received, and out of love and affection we have for her as the wife of our brother, William Parker, deceased. They further agreed to secure the payment of the promised sum by executing a mortgage to the trustee on a tract of 62 acres of land lying in the county of Jefferson. The trust was accepted by Cotton, and by its terms he was to invest, at his discretion, the proceeds of the note in interest-bearing bonds; the annual income to be paid to the beneficiary, with the right on her part to dispose of the whole sum at her death by will or otherwise. The mortgage was executed as the original trust provided, and, the obligors failing to pay the note, the trustee instituted the present action in equity, asking a judgment for the debt, and a sale of the mortgaged property to pay it. A demurrer was filed to the petition, and sustained on the ground that the consideration alleged was not sufficient to support the promise or agreement to pay.

It is assumed in argument that the statements of the petition show only the consideration of love and affection on the part of the...

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