Cotton v. Graham

• Decision Date: 06 January 1887
• Citation: 2 S.W. 647,84 Ky. 672
• Parties: COTTON, Trustee, v. GRAHAM and others.
• Court: Kentucky Court of Appeals

2 S.W. 647

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.

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 appellees for the execution of the obligation for the benefit of their sister-in-law, Mrs. Parker; and that such a consideration, where the relationship is so remote, or where none in fact existed except such as sprung from the marital relation that existed between their deceased brother and his wife, will not support the agreement to pay. If the facts alleged authorized the conclusion reached by counsel and the court below, there would be less difficulty in determining the question involved. This court has heretofore held, in several cases, that a voluntary agreement to provide for a collateral relative will not be specifically enforced. The obligation to provide for a wife or a child constitutes such a meritorious consideration as will authorize a court of equity to enforce it. But, as said in Buford v. McKee, 1 Dana, 107: "The whole foundation of the principle which turns mere gratuitous engagements and voluntary promises of bounty and munificence into contracts of obligatory efficacy is of such doubtful equity that we feel no disposition to carry it further than it has already gone." That was a case where Henry Paulding had executed a covenant to Buford, his nephew, for the conveyance of a tract of land at his (Paulding's) death, and on a bill filed to enforce the covenant the relief was denied. " See McIntire v. Hughes, 4 Bibb, 187; Stovall v. Barnett, 4 Litt. 207; Ford v. Ellingwood, 3 Metc. (Ky.) 359; and Arnold v. Park, 8 Bush, 3.

The case of Graves v. Graves, 7 B Mon. 213, is relied on by counsel for the appellant as sustaining his right to recover. In that case there was a verbal agreement between the brothers and sister of the appellant by which they were to make an equal contribution to the appellant (their brother) in order that he might have as much of the estate of their father as they had received, and in pursuance of the agreement, some of the brothers paid their portions of what they had agreed to contribute, and the appellee (another brother) refused to pay any sum whatever on the ground of a want of consideration. It was said in that case that "the contract, when actually entered into, furnished a sufficient consideration to make it binding on all, and that a failure of any one to perform his undertaking, and especially after others had performed theirs, would be a breach, not only of moral, but of...